458 S.W.3d 443
Mo. Ct. App.2015Background
- Twin girls (born May 2010) were taken into Children’s Division custody September 2010 for medical/nutritional neglect; adjudication/disposition occurred October 13, 2010. Both have remained in state custody since.
- Parents (Father: Van Courtney; Mother: Tammy Harris) were ordered to follow a social plan (visitation, employment/financial stability, housing, drug testing, counseling, psychological evaluation, attend medical appointments, identify relatives who could care for the children).
- Children’s Division filed a petition to terminate parental rights (TPR) October 17, 2013, alleging abandonment, abuse/neglect, and failure to rectify conditions leading to jurisdiction (Sections 211.447.5(1)–(3)).
- By trial (June 14, 2014): parents had become largely disengaged after March 2012 family support meeting (even signed consent for relative adoption), visitation became minimal (one visit by Mother, none by Father in 6 months before petition), parents missed medical appointments, Mother missed many drug screens and tested positive for alcohol repeatedly; Father submitted no drug screens.
- Parents were absent from the morning session of trial and made oral motions for continuance (no written motions); motions denied. The judge made extrajudicial remarks about Father’s driving record/license suspension during oral explanation of ruling.
- Trial court granted TPR; parents appealed arguing insufficient evidence, abuse of discretion in denying continuances, and that the judge considered evidence outside the record. Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether clear, cogent, and convincing evidence supported TPR for abandonment under §211.447.5(1) | Parents: contacts/visits show no intent to abandon | State: prolonged minimal visitation, failure to attend appointments, and signing adoption consent show abandonment/token visits | Affirmed — substantial evidence supported abandonment finding |
| Whether TPR supported for abuse/neglect under §211.447.5(2) | Parents: challenged sufficiency of evidence re chemical dependency and neglect | State: Mother’s repeated positive alcohol tests, failed treatment, parents’ failure to provide care/visitation/medical attendance support neglect/chemical dependency findings | Affirmed — evidence supported finding Mother’s alcohol dependency and neglect by both parents |
| Whether TPR supported for failure to rectify under §211.447.5(3) | Parents: argued conditions were remedied or not proven | State: parents failed to comply with social plan, minimal success by juvenile officers, Mother’s dependency persisted | Affirmed — record showed continued unremedied conditions and likely harm to permanency |
| Whether denial of oral continuance(s) was an abuse of discretion and whether judge relied on extrajudicial evidence | Parents: denial was arbitrary; judge improperly used his own investigation (driving record) | State: parents failed to comply with Rule 65.03 (no written motion); extrajudicial remark did not determine the outcome in a case that was not close on the merits | Affirmed — denial not an abuse (procedural default); judge’s extrajudicial remark improper but harmless given strength of record |
Key Cases Cited
- Murphy v. Carron, 536 S.W.2d 30 (Mo. 1976) (standard of review for sufficiency in civil cases)
- In re Adoption of C.M.B.R., 332 S.W.3d 793 (Mo. banc 2011) (standards and definitions for abandonment and sufficiency review in TPR cases)
- In re C.H., 412 S.W.3d 375 (Mo. App. E.D. 2013) (when extrajudicial sources/bias are at issue for judges)
- In re G.G.B., 394 S.W.3d 457 (Mo. App. E.D. 2013) (application of §211.447.5(3) — failure to rectify)
- In re P.G.M., 149 S.W.3d 507 (Mo. App. S.D. 2004) (token visitation doctrine in abandonment analysis)
- Waller v. Shippey, 251 S.W.3d 403 (Mo. App. W.D. 2008) (appellate briefing requirements and standards)
- Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978) (appellate court duties regarding deficient briefs)