Shawn R. McCarver, Esquire
Adult court, after certification, is not bound solely to factual allegations raised, or violations asserted, in the juvenile court petition. Certification procedure is not unconstitutional because: (1) consideration of statutory criteria to determine if juvenile should be certified is not the type of determination understood by the framers of the Bill of Rights to be within the jury’s domain; and, (2) certification findings do not increase available punishment, but only determines which court has final jurisdiction over the juvenile. State v. Williams, No. 98523 (Mo. App. E.D., September 17, 2013), Sullivan, J.
Defendant was certified to stand trial as an adult. Defendant was charged, in adult court, with additional and different charges than were alleged in the juvenile proceeding. After his conviction, defendant appealed, alleging that the trial court in the criminal case should have granted his motion to dismiss the indictment. Defendant alleges that he was deprived of notice and opportunity to be heard in the juvenile certification proceeding with respect to the new and different charges. Defendant further alleges that Section 211.071 is unconstitutional because it presumes the allegations in the juvenile petition to be true.
Defendant’s claim that counts two, three and four violated his rights because he was not charged with those offenses in juvenile court is moot because he was acquitted of those counts. This issue, however, has already been decided adversely to defendant’s position in another unrelated case which held that the adult court is not bound solely to the factual allegations raised or the violations of law asserted in the juvenile petition.
Defendant’s claim that the certification procedure in juvenile court is unconstitutional has likewise already been the determined adversely to him in an unrelated case. In that previous case, the Supreme Court reasoned that the statutorily defined criteria to determine whether a juvenile should remain in juvenile court or be certified to adult court is not the type of factual determination traditionally understood to be within the jury’s domain by the framers of the Bill of Rights. In addition, determination of those criteria does not increase the punishment the juvenile will face, but only determines which court has final jurisdiction over the juvenile.
Held: Convictions affirmed.
Where: (1) the respective Fathers’ rights were not terminated; (2) the children were bonded to Mother; (3) Mother had provided support; and, (4) there was no evidence that continuation of the relationship between Mother and the children would be detrimental to the children, termination of parental rights (TPR) is not in the best interests of the children. In Interest of C.M.H. and S.F.H., No. 32472 and SD32474 (Mo. App. S.D., September 18, 2013), Burrell, J.
Children were taken into care because of drug use and domestic violence. A treatment plan was approved. Mother stopped participating in substance abuse treatment. Mother was discharged from counseling for poor attendance. Mother had only sporadic phone calls with the Children’s Division worker after a DWI charge in April 2012. Mother completed parenting classes and had several jobs until April 2012. Mother brought gifts, clothes and snacks to visits. Mother provided some financial as well as in-kind support. Mother progressed to unsupervised, and then overnight, visits. After the DWI, Mother was allowed supervised visits, but did not call her Children’s Division worker. At the time of the TPR trial, Mother’s prognosis related to her ability to parent children was “very guarded” due to substance abuse issues. Mother’s progress was “up and down” in counseling. Mother violated her probation thirteen times, absconded from her probation, was arrested and remained incarcerated at the time of the TPR trial. One child was having trouble coping with being away from Mother and other family members. Mother was attached to both children. Both children were bonded to Mother. Mother appeals the termination of her parental rights. The rights of the Fathers of each of the children were not affected, and each Father has custody of his respective child.
Mother asserts that TPR was not in the best interests of the children. Following were the § 211.447.7 factors against TPR: the children were bonded to Mother, Mother had visited and maintained contact, Mother had provided in-kind support, and there was no evidence of convictions which would deprive the children of a stable home for a period of years or deliberate acts of abuse. Factors in favor of TPR were that Mother failed to provide financial support, failed to maintain sobriety and stability, and continuation of the relationship would diminish the prospect of an early stable and permanent home. Mother also asserted that TPR deprived the children of future support, affiliation and inheritance from Mother or anyone on her side of the family, and that, as both Fathers are unmarried, there is no person to step into Mother’s shoes.
When a child has two parents, consideration of the advantages and disadvantages of terminating the rights of only one parent is a part of the totality of the circumstances the court should consider in determining whether TPR is in the child’s best interests. The court should also consider what the child loses if TPR is ordered as to only one parent. In this case, there was no evidence that preservation of parental rights would expose the children to the possibility of either physical harm or psychological harm. In addition, there was no evidence of how termination of Mother’s rights would help the children reach the goal of having a permanent and stable home. Thus, where: (1) the rights of the respective Fathers were not terminated; (2) the children were bonded to Mother; (3) Mother had provided support; and, (4) there was no evidence that continuation of the relationship between Mother and the children would be detrimental to the children, TPR is not in the best interests of the children.
Held: Reversed and remanded.