Shawn R. McCarver, Esquire

Dismissal of Mother’s petition under § 210.854 is affirmed as Mother did not allege that she was not the biological parent. Cooper v. Cooper, No. 32236 (Mo. App. S.D., March 14, 2014), Sheffield, J.

Mother filed a petition under § 210.854 to set aside a judgment declaring that Father was the Father of the children. The trial court dismissed Mother›s petition on the ground that Mother cannot proceed under § 210.854 because Mother did not allege that she was not the biological parent. Section 210.854 allows relief from an otherwise final judgment determining paternity, but only as to a child found not to be a child of the petitioner. In this case, Mother did not allege that she was not the parent. Instead, she alleged that Father was not the parent.

Held: Dismissal affirmed.

Finding that there was a likelihood of future harm if parental rights were not terminated was supported by substantial evidence where court considered evidence prior to assumption of jurisdiction, evidence which led to assumption of jurisdiction and evidence of mother’s actions while the case was pending. Such a finding need not be explicitly stated by an expert or by any other witness. In Interest of A.A.R. and A.N.R., Nos. 32873 and 32874 (Mo. App. S.D., February 21, 2014).

Mother appeals the termination of her parental rights to the children. Mother’s rights were terminated for abuse/neglect and failure to rectify. On appeal, mother asserts that there was insufficient evidence to support a finding that there was a likelihood of future harm to the children if parental rights were not terminated. It is not required that any expert witness explicitly declare a likelihood of future harm. In addition, it is not required that any witness make an affirmative declaration of the likelihood of future harm. In this case, the evidence showed that despite 57 counseling sessions, there was still a concern at the time of trial that mother was not yet ready to parent the children. In addition, mother would avoid responsibility and deny her actions. Mother was not apt to make the changes necessary to improve her parenting. Mother demonstrated an ongoing lack of insight into her parenting issues despite having received intensive services. Mother’s recent behavior of physical and emotional abuse was the same behavior demonstrated years before. Thus, there was evidence of mother’s behavior before the assumption of jurisdiction, evidence that led to the assumption of jurisdiction, as well as evidence concerning mother’s actions while the case was pending. Here, there was substantial evidence supporting the trial court’s finding that mother’s behavior following the assumption of jurisdiction demonstrated that mother could not appropriately parent the children in the future.

Held: Termination affirmed.

In an adoption case, although adoption statutes are strictly construed, the degree of compliance is substantial, not literal. Thus, failure to formally offer reports into evidence does not require reversal where the record shows the investigation and post-placement assessments were considered by the court. The fact that the court received sufficient evidence by testimony does not require reversal where the court did not select the provider or order preparation of the reports. Adoption without consent of Mother for abandonment and neglect is affirmed where Mother did not visit after 2006, had infrequent telephone contact and provided infrequent gifts. In the Matter of:  T.S.D., No. 99499 (Mo. App. E.D., January 28, 2014), Odenwald, J.

In an appeal from the finalization of an adoption, the failure to admit the social study investigation and the post-placement assessment into evidence as well as the failure of the trial court to order those reports is challenged. While the adoption statutes are to be strictly construed, the degree of compliance is substantial, not literal. Construction of the statutes should not be so narrow so as to defeat the manifest intent of the legislature as evidenced by the code as a whole. Here, although the reports were never formally admitted into evidence, the record shows that the reports were prepared and considered by the court. The court made a specific finding that the reports and the criminal background checks were made and submitted to the court as required by statute. In addition, there was testimony from the report during the hearing. Therefore, any procedural defect is minimal and does not warrant reversal. Likewise, although the court did not order the reports or select the provider, the failure indicating a potential for bias in the assessments submitted, the court was provided with substantial evidence through testimony such that it did not err in its application of the adoption code. Granting of the adoption was proper for abandonment and neglect where Mother had only one visit since March 2005, a month-long visit in 2006, and made no other requests for visits, and where Mother had only irregular telephone contact and provided only infrequent gifts.

Held: Adoption affirmed.

Trial court decision relieving Children’s Division (CD) of obligation to make reasonable efforts to reunify under § 211.183.7(1) is affirmed where Mother subjected children to sexual abuse by stepfather when Mother knew or should have known of the abuse. Juvenile Officer v. A.S.M., No. 76303 (Mo. App. W.D., March 4, 2014), Martin, P.J.

Mother appeals the judgment of the trial court that the CD need not provide reasonable efforts to reunify Mother with the children under § 211.183.7(1), RSMo. Although the statute refers to a parent subjecting a child to a severe act or recurrent acts of physical, emotional or sexual abuse, the provisions are met where Mother subjected her children to sexual abuse perpetrated by their stepfather. In this case, the court found that Mother knew or should have known that Mother was exposing her child to a situation in which severe or recurrent acts of abuse were likely to occur. In this case, Mother witnessed stepfather inappropriately pinching her daughter’s breasts, Mother was home during some acts of sexual abuse, and Mother instructed her child not to tell anyone about stepfather’s acts of abuse. Mother failed to report her daughter’s rape and pregnancy to police even after a doctor instructed her to do so. Mother claimed she did not have time, but she did have time to schedule an appointment for an abortion. Mother, however, canceled the appointment for the abortion after police informed her they would collect the fetus for genetic testing. Even after being informed that stepfather was the biological father of her daughter’s child, Mother said she was “working on her marriage” with stepfather.

Held: Affirmed.

Termination for failure to rectify affirmed where Mother suffered from serious and long-standing mental illness not likely to be remedied in the future. Termination of Parental Rights (TPR) is in best interests of Child where Mother had been unable to establish a bond with Child, did not provide support and where all available services had been provided. In Interest of T.J.P., Jr., No. 76551 (Mo. App. W.D., March 4, 2014), King Mitchell, J.

Termination of Mother’s parental rights for failure to rectify was reviewed by the court. Child was taken into care shortly after birth as a result of Mother’s neglect of two siblings not involved in this case. Mother suffers from serious and long-standing mental illness which is not likely to be remedied in the near future. Mother has suffered from mental illness since childhood and continued to have mood swings, paranoia, depression, anxiety and auditory hallucinations, some of which suggested that she harm Child. Mother’s history of mental health treatment for at least 10 years without resolution of the issues indicates a likelihood of future harm sufficient to justify termination of parental rights. There was sufficient proof that the conditions which led to the assumption of jurisdiction still persisted and that other conditions of a harmful nature existed. In addition, there was sufficient evidence that harmful contingent conditions continue to exist and that there is little likelihood those conditions would be remedied at an early date permitting reunification in the near future. As to best interests, Mother had not been able to establish a bond with Child, Mother did not provide any financial or other support for the Child, and Mother did not demonstrate a desire to work. All available services had been provided to Mother.

Held: Termination affirmed.