Juvenile Law

Editor:
Shawn R. McCarver, Esquire

Termination of Parental Rights (TPR) for abuse/neglect, failure to rectify and parental unfitness reversed.  Evidence of mental illness was three years old at time of trial.  Mother provided in-kind support and also received a letter from Family Support Division stating her case was closed.  In Interest of Q.A.H., No. 75786 (Mo. App. W. D., July 16, 2013), Hardwick, P. J.

Child was placed in foster care after mother made delusional statements to hospital staff. Mother said she and child were raped “in their sleep,” that she was drugged through the air vents in her home, that child could speak in sentences despite being only five years old, and that an electronic listening device had been placed in child’s vagina. Mother requested that the child’s vagina “be sewn closed.”

Mother began having weekly supervised visits, then unsupervised visits. In February 2010, it was recommended the child be reunited with mother. Child was removed again in May 2010 after mother failed to comply with a court order regarding father’s visitation. Father filed a consent to termination of parental rights and consent to adoption. Foster parents filed an adoption petition joining a count to terminate parental rights under Chapter 211. Parental rights were terminated for abuse/neglect upon the aggravating factors of mental condition and neglect for failing to provide support, failure to rectify based upon mental condition, and parental unfitness.

There was insufficient evidence for TPR on the ground of mental condition because the report was based upon an evaluation conducted almost three years before trial, the evidence did not indicate the condition was untreatable or permanent, the only evidence of mother’s condition at the time of trial was the court’s observations of mother’s behavior during the trial, there was no evidence that mother’s condition was so severe that mother was incapable of providing minimally acceptable care for the child, the court had returned the child to mother after the evaluation upon which the court relied at the termination trial, and the court’s judgment failed to address the implications of mother’s mental condition on the likelihood of future harm.

On the other hand, four days before trial, mother had a diagnosis of post-traumatic stress disorder as a result of an “isolated event.”  The doctor testified that even with a delusion that is fixed in nature, a person is usually able to function. In addition, based upon a therapy session the day before trial, a therapist said that mother had a “positive long-term prognosis.” 

As to the failure to provide support, mother had received a letter from family support division stating her case was “now closed.”  Although a parent must support a child when in custody even if no demand is made, where the division makes no demand, a reasonable person could believe that financial assistance is unnecessary after receipt of such a letter.  In addition, mother provided in-kind support consisting of toys, music, extra food, diapers, wipes and a car seat. This demonstrated mother’s intent to continue the parent-child relationship. The court also failed to make findings showing how mother’s failure to support the child predicted future harm to the child. Failure to rectify based upon mental condition and potential unfitness based upon mother’s delusional behavior also do not support termination of parental rights for the same reasons they do not support the ground of abuse and neglect. Reversed and remanded.


Where Indian father agreed to relinquish his rights prior to birth and thereafter provided no support during the remainder of the pregnancy or the first four months of the child’s life, the state court’s denial of an adoption was reversed because the heightened showing provision and the remedial services provision of the Indian Child Welfare Act (ICWA) do not apply to an Indian father who has never had custody and who abandoned the child prior to birth.  In addition, the adoptive placement preferences of the ICWA do not apply as there was no competing petition to adopt the Indian child.  Adoptive Couple v. Baby Girl, 12-399 (U.S. 6-25-2013).

While mother was pregnant with daughter, father agreed to relinquish his parental rights and thereafter provided no assistance to mother or daughter.  Four months after the child was born, father was served with an adoption petition.  Father objected and sought custody.  Because father is a member of the Cherokee Nation, the adoption was denied because the South Carolina courts applied the Indian Child Welfare Act (ICWA).  Daughter was turned over to father at 27 months of age despite the fact that father had never met daughter.  The U.S. Supreme Court granted certiorari. 

ICWA generally requires a heightened showing regarding the merits of the parent’s continued custody as well as remedial services prior to termination of parental rights with respect to an Indian Child.  Because father never had custody of daughter, neither the heightened showing (Section 1912(f)) nor the remedial services (Section 1912(d)) provisions of the ICWA apply.  In this case, father never had custody and he abandoned the child prior to birth.  Thus, there could be no “continued custody” as contemplated by Section 1912(f), nor any “relationship” to be “discontinued” as contemplated by Section 1912(d).  Further, the adoptive placement preferences of Section 1915(a) do not apply to father as there was no competing petition to adopt child (father sought custody, but did not file an adoption).  Reversed and remanded.


Adoption without Mother’s consent affirmed where Mother abandoned and neglected child for more than six months.  Concurrent jurisdiction doctrine was not violated by juvenile court in granting adoption where probate court had already granted guardianship because the two judgments were not inconsistent.  Adoption eliminated the need for the guardianship and custody was not transferred away from guardians.  In re: J.M.J., No. 75852 (Mo. App. W.D., July 30, 2013), Hardwick, P.J.

Mother appeals the adoption of her child by maternal grandparents without consent of mother.  Mother exposed the child to inappropriate persons and failed to take proper care of the child over a period of time. Maternal grandparents obtained legal guardianship. After the guardianship was granted, mother abandoned and neglected the child. Mother failed to provide regular, consistent or meaningful financial support. Grandparents assisted mother in obtaining employment, but mother was unable to keep any job for longer than six months. When she did earn money, she used the money to help her friends and other persons living in her home instead of the child. Mother also failed to provide emotional support for the child. As the guardianship went on, mother’s contacts and visits became sporadic until she would go weeks at a time without contacting the child. Grandparents were willing to provide transportation for visits. Mother had no meaningful involvement in the child’s medical care, school or other activities. She did not attend medical appointments, including a hospitalization or three surgical procedures. She attended only one school program in four years and never attended any parent-teacher conferences. Mother failed to create a safe home by allowing a various inappropriate persons to have contact with the child including a registered sex offender, a man with a criminal history and mental health issues, a prostitute and drug addict, and a man who subsequently sodomized a sibling of child.

On appeal mother contends that the juvenile division had no jurisdiction to grant the adoption because of the existing guardianship. There was no violation of the “concurrent jurisdiction doctrine” because a guardianship is a temporary measure to provide care for a minor when the natural parent is unable, unwilling or unfit. When a parent cannot rehabilitate and reassume parenting responsibilities within a reasonable time, the appropriate legal remedy may no longer be a guardianship but, instead, may be an adoption. The adoption of child by maternal grandparents did not create an inconsistent judgment. Instead, the adoption eliminated the necessity of the guardianship. In addition, the adoption did not contradict the guardianship because it did not result in a transfer of actual custody away from the guardians. There was sufficient evidence of abandonment and neglect. Although it is desirable that siblings be raised together; in this case, Mother had abandoned and neglected the child, and the child and the siblings never resided together in the first place. Adoption affirmed.


Division of Youth Services (DYS) is authorized to file a petition prior to the end of a commitment, regardless of whether the end is the juvenile’s eighteenth birthday or some earlier date specified in the original commitment, to request that the commitment continue beyond the original end date.  In Interest of K.H., No. 75653 (Mo. App. W.D., July 23, 2013), Hardwick, P.J.

Juvenile was adjudicated for both status and delinquency. After failed placements with both mother and father, the juvenile court committed the juvenile to the custody of the Division of Youth Services. The commitment was to be until the juvenile was discharged by law or until the juvenile reached seventeen years of age. Prior to the juvenile’s seventeenth birthday, DYS filed a petition requesting that the court extend DYS’s custody of juvenile indeterminately beyond the juvenile’s seventeenth birthday. The juvenile court granted the request. Juvenile appealed.

Section 219.021.1 provides that DYS shall not keep any child beyond his eighteenth birth date, except upon petition and a showing of just cause in which case the Division may maintain custody until the child’s twenty-first birth date. Although the statute does not say where the petition is to be filed, it is held that such a petition is to be filed with the same court that initially made the commitment. Whether the commitment is until the child’s eighteenth birthday or until some earlier court ordered deadline, the result is the same. The child’s initial commitment to DYS ends. In either case, DYS is authorized to request an extension. Affirmed.


Unless a child abuse/neglect hotline investigation involves the death of a child, an investigation of abuse/neglect shall not continue beyond niney days.  Williams v. Dept. of Social Services, No. 75693 (Mo. App. W.D., July 23, 2013), Martin, J.

Children’s Division received a hotline related to sexual abuse. 128 days after beginning the investigation, the division completed the investigation, concluding that the allegations had been substantiated. 133 days after beginning the investigation, the division notified Williams of the determination. The Child Abuse and Neglect Review Board upheld the division’s determination. Williams filed a petition for de novo judicial review. The trial court reversed the decision of the review board.

The division appeals, alleging that time periods set forth in Sections 210.145.14 and 210.152.2 are discretionary rather than mandatory. Under § 210.145.14, the division shall complete all investigations within thirty days, unless “good cause” for the failure to complete the investigation is documented in the information system. Under § 210.152.2, the alleged perpetrator shall be notified in writing of the determination within ninety days of the receipt of the report.

It is held that the “good cause” exception contained in § 210.145.14 operates to extend the thirty day time frame, but it does not permit any investigation to continue beyond the ninety day time frame unless the investigation involves the death of a child, in which case § 210.183.1 permits the investigation to remain open until it is completed. In all other circumstances, the ninety day notification requirement is mandatory.  Affirmed.


Termination of incarcerated father’s parental rights for parental unfitness affirmed where: he failed to complete many court-ordered services; had never had contact with child; his release from prison was uncertain because of pending charges; where there was no bond between father and child and where it was impossible to determine when or if a bond could be established.  In Interest of J.D.P., No. 99526 (Mo. App. E.D., August 13, 2013).

Child was placed in the custody of the Children’s Division eleven days after child was born. Father was incarcerated at the time of birth and remained incarcerated at the time child was placed in the custody of the Children’s Division. Father was provided a service agreement requiring him to complete certain court-ordered services. Seventeen months after child was placed in care, a petition was filed to terminate father’s parental rights. Father’s parental rights were terminated for abuse/neglect, failure to rectify and parental unfitness. Only the ground of parental unfitness was reviewed.  Father alleged that his rights were improperly terminated because he was incarcerated. Father never had any contact with child. Father failed to make telephone contact, to send letters, cards or gifts, and father only responded to two of eleven letters sent to him by the Children’s Division while he was incarcerated. While incarceration may not be the sole ground for termination, it does not discharge a parent’s obligation to provide a child with a continuing relationship through communication. It was unclear when father would be released from prison because of certain pending charges. Father had also failed to complete many of the court-ordered services required for reunification. This evidence shows that reunification could not occur within an ascertainable period of time. In addition, father had no bond with the child and it was impossible to determine when or if a bond could be established. Father was, therefore, unable for the reasonably foreseeable future, to care for the needs of child.  Termination affirmed.