Shawn R. McCarver, Esquire
Father’s claim that trial court lacked authority under UCCJA was waived when not raised for over two years. Father’s objection to personal jurisdiction was waived where he received the required notice, participated in the case, and did not raise the issue at the earliest opportunity. Failure to conduct termination of parental rights (TPR) trial within 30 days of meeting was waived where Father agreed to a date outside the time period and then filed numerous motions and received continuances he requested. Trial judge was not required to recuse despite lawsuits and complaint filed against judge where there was no evidence of bias or prejudice stemming from an extrajudicial source. TPR for neglect is affirmed where Father had only token visitation and contact, paid only token support, and where Father’s actions caused child to suffer from an adjustment disorder. Mo. Dept. of Social Services v. B.T.W., No. 76323 (Mo. App. W.D., November 26, 2013).
Child, born in 2002, was brought from Illinois to Missouri in 2006. An in-home service worker notified the Division that child was at imminent risk. A petition was filed and Mother admitted she could not care for child. A protective custody order was issued. Father was called, and was notified by both certified mail and regular mail. Father received the certified mail 2 days before the 2007 adjudicatory hearing. Mother’s mental condition prevented her from caring for child, and the court assumed jurisdiction and placed child in foster care. Father missed the hearing, having been stopped for a traffic violation on the way to the hearing. Father had two home studies through ICPC on his Illinois home. Both were denied. In 2009 Father moved to dismiss for lack of subject matter jurisdiction under the UCCJA. The motion was denied. Father continued to file other motions challenging the court’s authority over the case. In 2012, a TPR petition was filed. TPR was granted in 2013 for abandonment, neglect and failure to rectify. On appeal Father raised points of error related to the juvenile case, the pre-trial rulings in the TPR case and the TPR judgment.
Because there is no issue as to subject matter jurisdiction under the Webb v. Wyciskalla case, Father could not relitigate the issue of the court’s authority to hear the case under the UCCJA where it was first raised two years after the adjudication/disposition. Although Father lived 450 miles away, Father received notice required by Rule 115.01(d) in that he had at least twenty-four hours’ notice and the certified mail was sent more than five days before the hearing. Father did not raise these due process issues at the earliest opportunity and Father took part in the case for over two years before raising the due process claims. Father waived any objection to lack of personal jurisdiction.
Father alleged error in the failure to conduct the TPR trial within thirty days after the meeting to order the social study under § 211.455, RSMo. Here, as permitted by Rule 125.03(a)(4), there was good cause for not doing so, as Father agreed to a later date, and by filing numerous motions and requesting continuances. Father also alleges the trial judge should have recused due to two lawsuits filed against the judge along with a complaint to the judicial commission, and because the judge ruled against Father on all his motions. An alleged bias or prejudice must stem from an extrajudicial source. Filing of suits or complaints against the judge does not require recusal.
Termination for neglect was supported where Father visited child only four times since the child was taken into care, and where Father sent only one letter. Father only took part in eight of sixteen telephone visits. Father did not sign or return his written service agreements. Father’s efforts were properly disregarded as token efforts. Father provided only token support. Father did not provide a residence. The court correctly determined that Father’s conduct has harmed child in that Father’s inconsistent behavior and unkept promises has caused emotional turmoil resulting in the child suffering from an adjustment disorder. Therapy was discontinued as continued therapy added to the child’s distress. That TPR was in the best interests of the child was supported by the fact that there was no emotional bond, inconsistent visitation and contact, no support, and no additional services that could be provided. TPR affirmed.
Mother claims that the trial court erred by not holding the trial within 30 days of the meeting required by
§ 211.455, as required by § 211.459. Mother raises this claim for the first time on appeal. The alleged error is waived. Adoption affirmed. In re the Adoption of J.A.D., B.L.D., J.D.D., S.R.N. and B.T.N., 32724 (Mo. App. S.D., December 12, 2013), Lynch, J.
A three-count adoption petition was filed. In accordance with § 211.455, the trial court conducted a meeting to determine if service had been made and to order the required investigation and social summary. Trial was held greater than thirty days after the meeting in violation of § 211.459. Mother’s attorney appeared at trial, but Mother did not appear.
Held: Affirmed. The issue was not raised at trial. The claimed error was not preserved for review. Adoption affirmed.