Juvenile Law

Shawn R. McCarver, Esquire

Termination of Parental Rights (TPR) affirmed where Father sexually abused daughter, never admitted guilt in counseling, was never approved by the therapist for visitation, and where the children were in care for several years and there was little emotional bond. Denial of Father’s request for continuance of the TPR trial was neither an abuse of discretion nor a violation of Father’s procedural or substantive due process rights. In Interest of D.L.W. and A.M.J.W., No. 98307 (Mo. App. E.D., October 30, 2012), Richter, J.

In February 2008, the trial court found that Father sexually abused his daughter. Daughter and her sibling were removed. The court assumed jurisdiction and required Father to complete sexual-offender counseling. Father was denied visitation rights until the childrens’ therapists approved. Over the next three years, Father was never granted visitation, but he substantially complied with the service plan by attending all court hearings, paying child support and attending the sexual-offender counseling. Father was, however, unsuccessful at completing the sexual-offender counseling because Father was unwilling to admit that he sexually abused his daughter.

In March 2011, a petition for termination of parental rights was filed. The trial was set for January 13, 2012. On January 6, 2012, Father filed a motion for continuance. Father requested that the matter be heard on January 19, 2012. The Children’s Division consented. On January 19, 2012, Father did not appear. Father’s attorney made an oral motion for continuance, which was denied by the court. At the trial, Father’s attorney did not make an offer of proof establishing how Father could have contributed to assisting his counsel, nor did Father’s counsel call any witnesses on behalf of Father. After the termination of parental rights was granted, Father appealed.

Father alleges that admissibility of his unsuccessful completion of sex-offender counseling violated his Fifth Amendment rights. The court reviewed case law from other courts because Missouri courts have not yet determined whether forcing a parent to confess to child or sexual abuse in court-ordered therapy as a condition of family reunification violates the parent’s privilege against self-incrimination. The court declined to rule on the issue, finding that other sufficient evidence supported termination of parental rights.

In this case, the children had been in foster care for at least 15 of the most recent 22 months, Father was found to have sexually abused his daughter, the children had been under the jurisdiction of court since October 2007, other sexually deviant allegations were made against Father, the therapists never recommended that the children have contact with Father and Father had no substantial emotional ties with the children. There was sufficient evidence, independent of Father’s unsuccessful completion of sex-offender counseling, to support termination of parental rights for abuse/neglect and failure to rectify.

The denial of the continuance by the trial court was affirmed because the motion for continuance did not comply with Rule 65.03. It was not in writing and was not accompanied by an affidavit. The court distinguished this case from the case of In Interest of J. R., 347 S.W.3d 641 (Mo. App. E.D. 2011). In that case, the parents had resolved the issues preventing reunification, appeared at all but one of the court hearings and fully participated in the process. In this case, however, Father sexually assaulted his daughter, did not receive visitation for four years and there was no strong family bond. In addition, the court had continued the case to a date requested by Father, yet Father did not appear on the new date.

Father also alleged that his due process rights were violated when the court did not give him an additional continuance. Procedural due process requires adequate and sufficient notice and an opportunity to be heard before deprivation of a property right. Due process is accorded where a party is given sufficient notice of a trial and the trial is held regardless of whether the party actually takes advantage of the opportunity to be heard. There is no per se rule which requires the physical presence of a parent during a hearing to terminate parental rights, so long as the court affords the parent procedural due process by other means.

In order to establish a violation of substantive due process rights, the individual must demonstrate both that the official’s conduct was conscience-shocking and that the official violated one or more fundamental rights that are deeply rooted in this nation’s history and tradition. Father’s substantive due process was not violated because the denial of the motion for continuance was not conscience-shocking. The denial of the continuance was not arbitrary. Instead, it was within the trial court’s discretion. Father was given the opportunity to defend the allegations. Father simply chose not to utilize that right. Termination affirmed.

Termination of Mother’s parental rights for failure to rectify affirmed where Mother initially complied in part with the service agreement, but where Mother thereafter had only sporadic contact with the child, failed to make herself available for drug testing, did not keep the Children’s Division apprised of her contact information or employment status and where, in June 2010, mother sent a letter to the caseworker advising that she was “pretty much done working to get [child] back.”  Mother had no contact with caseworker after April 2011 and Mother failed to appear for the two-day termination of parental rights trial.  In Interest of J.M.T., No. 31891 (Mo. App. S.D., October 17, 2012), Francis, J.

Mother appeals the judgment terminating her parental rights. The child had been hospitalized for serious behavior and mental health issues at least six times prior to October 2007. The child had been diagnosed as bipolar, with obedience disorder, mild mental retardation, post-traumatic stress disorder and attention-deficit/hyperactivity disorder.

In October 2007, it was reported that the child threatened to kill his brother by stabbing him. The child was hospitalized and while hospitalized had serious behavioral issues including aggressively chasing other children, spitting on people, hoarding dangerous items such as razor blades and knives, cursing, punching walls, choking his younger sister, throwing inanimate objects and punching mother in the face and stomach as well as kicking her repeatedly.

The child was taken into protective custody on November 9, 2007, when Mother voluntarily gave custody of the child to the Children’s Division because she was frustrated and did not know how to handle the child’s behavioral and mental health issues.

Prior to March 2010, Mother completed several tasks required of her. During that same period, however, Mother failed to maintain stable housing, resided with an inappropriate paramour who had tested positive for cocaine, failed to complete parenting classes, failed to obtain steady employment and stopped attending individual and family therapy appointments. Mother also failed to provide financial support although she received disability benefits.

Beginning in February 2010, Mother’s contact and visitation with the child became sporadic. Mother had ample opportunity to visit, but began canceling visits. Mother failed to maintain contact with the caseworker and failed to provide support. Mother failed to make herself available for drug testing and did not keep the Children’s Division apprised of her contact information or employment status. In June 2010, Mother sent a letter to the caseworker advising that she was “pretty much done working to get [child] back.”  The caseworker had no contact with mother after April 2011. Mother failed to appear for the two-day termination of parental rights trial. This evidence supported termination of parental rights for failure to rectify. Termination affirmed.

Termination of parental rights for abuse/neglect and failure to rectify affirmed where father only visited four times in the year before the trial, had limited telephone contact, frequently moved making provision of services difficult, only attended two and a half out of eight parenting classes, did not attend counseling and failed to take advantage of opportunities provided by Children’s Division. In Interest of J.M.T., No. 31909 (Mo. App. S.D., October 17, 2012), Rahmeyer, J.

Father appeals the judgment terminating his parental rights to the child for abuse/neglect and failure to rectify. The child came into the jurisdiction of the court on November 7, 2007, because mother voluntarily transferred custody of the child to the Children’s Division. The trial court acknowledged positive behavior on the part of father in certain areas, however, the trial court found that the positive behavior was outweighed by father’s failure to consistently maintain a relationship with the child.

During the course of the case, father frequently moved his residence thereby making it difficult to provide services. Father’s home study was ultimately denied. Father attended only two and a half out of eight parenting classes and father did not attend therapy. Although allowed visitation once every two weeks, father visited only four times during 2011. Father’s last phone conversation with the child was months before the termination hearing.

The child had to endure numerous placements. The child, age 13, had been in six different placements by December 2009 and at the end of the 2009-2010 school year, the child was moved yet again because of behavior issues. The therapist saw a pattern of anger outbursts which generally occurred after the child had contact with father. The child typically struggled when father would promise visits or activities and fail to follow through on those visits or activities.

The trial court did not abuse its discretion in finding that the best interests of the child required stability and bonding and that the current foster home was providing the same. Termination of parental rights affirmed.