534 S.W.3d 887
Mo. Ct. App.2017Background
- Father (J.D.W.) was convicted of first-degree sexual abuse (class C felony) in May 2015 and sentenced to seven years; he remained unavailable to parent due to incarceration and potential parole only after completing a sex-offender program.
- Children were taken into protective custody April 14, 2014; they remained in the Children’s Division custody through the TPR hearing.
- Six Written Service Agreements (WSAs) required Father to maintain contact, write letters, secure safe housing and employment, attend FST meetings/court, participate in parenting classes, and complete a sex-offender program. Father largely failed to comply (sporadic letters, inconsistent contact, no safe housing, minimal financial support, refused sex-offender treatment).
- Juvenile Office filed petitions to terminate parental rights under §211.447.5(3) (failure to rectify) and initially §211.447.5(4) (felony against a minor in the family); the latter was dismissed when the victim was shown not to be a family member or household member.
- Trial court found statutory grounds (failure to rectify; effect of felony conviction and §211.038 prohibiting reunification) and that termination was in children’s best interests; judgment terminating Father’s parental rights was entered and appealed.
Issues
| Issue | Father’s Argument | Juvenile Office / Trial Court Argument | Held |
|---|---|---|---|
| 1. Whether conviction could be considered under §211.447.5(3) after §211.447.5(4) dismissal | Conviction involved a minor but not a family/household member, so it shouldn’t support termination | Conviction nonetheless showed children were deprived of a stable home and relevant to failure-to-rectify ground; §211.038 barred placement | Court: conviction properly considered in analyzing §211.447.5(3); Point I denied |
| 2. Trial court citation error (211.083 v. 211.038) | Trial court erred by citing §211.083 which doesn’t authorize TPR | Substance relied upon was §211.038 (statutory prohibition); citation was typographical and not prejudicial | Court: harmless error; outcome supported by record; Point II denied |
| 3. Termination based on incarceration/abandonment | TPR cannot be based solely on incarceration; Father did not abandon | Father’s incarceration, noncompliance with WSAs, lack of contact/support and felony effects supported failure-to-rectify and best-interest findings | Court: Point not preserved (procedural defect); review denied |
| 4. Due process / notice by not pleading §211.038 | Juvenile Office’s dismissal of §211.447.5(4) and not citing §211.038 deprived Father of notice | Pleadings alleged failure-to-rectify; Father raised no timely due-process objection; §211.038 effect was argued and relied upon at trial | Court: claim waived for failure to preserve; Point IV denied |
| 5. Weight/sufficiency of evidence re: failure-to-rectify and WSAs | Father made some efforts (letters, work, hearings) so findings against weight | Record shows substantial failures: inconsistent contact, no adequate housing, no parenting classes, no sex-offender treatment, no financial support | Court: appellant’s weight/sufficiency arguments noncompliant with required analytic steps and unpersuasive; Points V–VII denied |
| 6. Ineffective assistance of counsel | Counsel failed to prepare, subpoena witnesses, object to pleadings amendment | Counsel made pre-trial arguments, cross-examined, presented evidence; objections would have been non-meritorious | Court: Father failed to show denial of meaningful hearing; Point IX denied |
Key Cases Cited
- J.A.R. v. D.G.R., 426 S.W.3d 624 (Mo. banc 2014) (standard of appellate review in TPR and deference to trial court credibility)
- Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) (burden of proof standard in termination proceedings)
- In the Interest of J.P.B., 509 S.W.3d 84 (Mo. banc 2017) (review standards for TPR best-interest inquiry and appellate deference)
- Houston v. Crider, 317 S.W.3d 178 (Mo.App. S.D. 2010) (required analytical sequence for against-the-weight challenges)
- In the Interest of C.Z.N., 620 S.W.3d 828 (Mo.App. S.D. 2017) (right to counsel and meaningful hearing in TPR proceedings)