Juvenile Law

Shawn R. McCarver, Esquire

Where Third Amended Petition for Custody alleged sufficient facts for a claim of third party custody under § 452.375.5(5)(a), dismissal of said petition for failure to state a claim is reversed and the case remanded. Third Amended Petition sufficiently alleged facts that both parents were unfit, that it would be in child’s best interests to award third party custody to Petitioner and that Petitioner is suitable and able to provide an adequate and stable environment for the child. In re T.Q.L., No. 92442 (Mo. banc December 18, 2012), Russell, J.

Petitioner is not the father of the child, but while in a relationship with Mother the child was born and the parties entered into a contract that Petitioner would support the child, but that neither would place Petitioner’s name on the birth certificate or assert or deny paternity. Petitioner acted as father and took an active role in the child’s life. The relationship between Mother and Petitioner “soured” and Petitioner filed an action to determine his custodial rights.

The third amended petition seeking third party custody alleged that Father was unfit because he is unknown, cannot be served and has never established a relationship with the child. Allegations against Mother included that she had made suicide attempts with the child in the home, that she suffered from mental instability, that she had engaged in conduct that would emotionally injure the child and that Mother had made false hotline reports against Petitioner in an effort to deprive Petitioner of a relationship with the child.

A motion for dismiss for failure to state a claim upon which relief can be granted is reviewed in an almost academic manner to determine if facts alleged meet the elements of a recognized cause of action, and the allegations are treated as true and are to be liberally construed in favor of the pleader. No effort is made to weigh the credibility or persuasiveness of the facts alleged.

Third party custody is a recognized cause of action under § 452.375.5(5)(a) and the third amended petition alleges the elements thereof as required. Dismissal reversed and cause remanded.

Termination of Mother’s parental rights for abuse/neglect is reversed where there was no evidence of abuse and evidence of neglect dated back to the removal and there was no convincing link to predicted future behavior nor was there any explicit consideration of whether the past acts provide an indication of the likelihood of future harm. Termination of Mother’s parental rights for failure to rectify is reversed where Mother rectified the conditions that brought the child into care and there was insufficient evidence that Mother could not rectify other conditions within an ascertainable period of time. In Interest of P.J., No. 31955 (Mo. App. S.D., November 28, 2012), Scott, P.J.

Child was removed because Mother was making methamphetamine with the child in the home. Child was placed with maternal grandmother, who violated instructions when the child was found back in Mother’s residence where there was drug activity. Child was removed into foster care where child has thrived. Two months after Mother was released from prison, the TPR petition was filed. At the trial, the evidence showed Mother had rectified the conditions leading to assumption of jurisdiction. The focus was on Mother’s inability to support the child and her dependence on maternal grandmother. Mother had obtained employment one month before trial and she had only progressed to two one-hour supervised visits per week. Mother could not parent the child without assistance or supervision. Mother had, however, substantially complied with her treatment plan. She had completed drug treatment, was successful in drug court, had remained drug free, had refrained from co-dependent relationships, had participated in therapy and had complied with her probation.

There was no evidence of abuse. The only evidence of neglect dated to the time of removal and there was no evidence linking that to predicted future behavior, nor was there any consideration of whether those past acts provided an indication of likelihood of future harm. Thus, TPR for abuse/neglect must be reversed for failure to comply with the requirements of K.A.W., 133 S.W.3d 1 (Mo. banc 2004).

Mother rectified the conditions which brought the child into care. The new harmful conditions were Mother’s dependence on grandmother, Mother’s inability to support the child and Mother’s lack of parenting skills. Mother is not required to be able to raise the child by herself in order to avoid a termination of parental rights. The fact that grandmother allowed the child to go back with Mother at the beginning of the case was insufficient to terminate rights for the same reason that Mother’s initial neglect was insufficient – there was no compliance with the K.A.W. case.

Further, there was no evidence that Mother could not remedy the perceived harmful conditions with an ascertainable period of time allowing for early integration into a stable and permanent home. Termination reversed.

Trial court may not order FSD to pay the cost of genetic testing in action to set aside paternity judgment under § 210.854 even though petitioner is indigent and was allowed to file in forma pauperis. State ex rel. Mo. Dept. of Social Services, Family Support Division v. Campbell, No. 75408 (Mo. App. W.D., November 27, 2012), Martin, P. J.

Father filed a petition against Mother, two children, alleged father and the Family Support Division to set aside an earlier judgment which had declared him to be father. The trial court ordered FSD to advance the cost of genetic testing. FSD sought a writ of prohibition.

Section 210.854.3 provides that the cost of genetic testing shall be paid by petitioner. Father argues that he cannot be made to pay the cost thereof since he was allowed to file in forma pauperis. Even assuming Father is indigent under § 514.040, and even assuming that the cost of the test is a “cost” under § 514.040, there is no authority to shift the cost of the test to the State.

Section 210.834 provides a second means to order parties to submit to blood tests, but this section is part of the Uniform Parentage Act, §§ 210.817 to 210.852, and is an action to determine paternity in the first instance. Section 210.834 does not apply to an action under § 210.854 to set aside a judgment which has already determined paternity. Preliminary writ of prohibition made absolute.