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In re J.L.D.

Court of Appeals of Missouri, Southern District, Second Division

October 14, 2014

In re the Adoptions of J.L.D., C.M.D., M.J.D., and H.E.D., JASPER COUNTY JUVENILE OFFICE, Petitioner-Respondent,
v.
N.M.D., Natural Mother, Respondent-Appellant

APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY. Honorable Judge Gayle L. Crane, Circuit Judge.

FOR APPELLANT: BRADLEY R. BARTON, Webb City, MO.

FOR RESPONDENT: JOSEPH L. HENSLEY, Joplin, MO.

MARY W. SHEFFIELD, P.J. - OPINION AUTHOR. NANCY STEFFEN RAHMEYER, J. - CONCURS. GARY W. LYNCH, J. - CONCURS.

OPINION

MARY W. SHEFFIELD, P.J.

Page 551

N.M.D. (" Mother" ) appeals from the trial court's order terminating her parental rights in her four minor children. Mother claims the trial court's judgment should be reversed because the trial court failed to comply with Section 211.459.[1] Mother's claim is not preserved for appellate review, so we affirm the trial court's judgment.

Factual and Procedural Background

Mother does not challenge the trial court's findings regarding the grounds for termination or that termination was in the children's best interest. Thus, we discuss only the facts relevant to Mother's procedural claim.

The children were taken into protective custody during the summer of 2011 because the home in which they were living was not sanitary and the children lacked proper supervision. The children were placed with D.L.D. (" Grandfather" ) and L.S.D. (" Grandmother" ).

On August 16, 2013, Grandfather and Grandmother filed a petition for adoption. Count I of the petition alleged Mother's consent to the adoptions was not necessary under Chapter 453 because Mother had failed to provide the children with necessary care and protection.[2] Count I also requested transfer of custody and termination of parental rights under Chapter 453. Count II sought termination of Mother's parental rights based on multiple

Page 552

grounds under Chapter 211.[3] Count III was for adoption of the children.[4] On August 23, 2013, the children's father filed a consent to terminate his parental rights with respect to each of the children. On August 27, 2013, the trial court ordered an investigation and social summary.

The dispositional hearing was held on February 4, 2014.[5] At the beginning of the hearing, Mother's attorney requested a continuance. In support, he argued there had not been a report filed in the case since October and Mother needed more time to mount a defense. The trial court denied Mother's motion for a continuance. Mother did not object to the timing of the hearing based on the requirements of Section 211.459.

The trial court entered its judgment on March 6, 2014. The trial court first found Mother's consent for adoption was not required under Section 453.040(7) because Mother had neglected to provide the children with necessary care and protection. The trial court then also made findings regarding failure to rectify under Section 211.447, RSMo Cum. Supp. (2013). The trial court further concluded that termination of Mother's parental rights was in the children's best interest. The trial court ordered Mother's parental rights terminated. Mother appeals.

Discussion

In her sole point on appeal, Mother argues " the trial court erred in terminating Mother's parental rights, because the trial court failed to comply with the mand[a]tory provisions of Mo. Rev. Stat. § 211.459, in that the dispositional hearing did not take place within thirty (30) days of the § 211.455 meeting between the juvenile officer and the trial court." Mother failed to preserve this claim for appellate review when she did not raise it to the trial court.

Page 553

Generally speaking, " [t]he requirements of section 211.455 are mandatory[.]" In re Adoption of C.M.B.R., 332 S.W.3d 793, 811 (Mo. banc 2011). " When a court fails to strictly comply with applicable provisions of chapter 211, the failure constitutes reversible error." Id. However, " [i]t is well recognized that a party should not be entitled on appeal to claim error on the part of the trial court when the party did not call attention to the error at trial and did not give the court the opportunity to rule on the question." In re Adoption of J.A.D., 417 S.W.3d 327, 329-30 (Mo. App. S.D. 2013) (quoting Niederkorn v. Niederkorn, 616 S.W.2d 529, 535 (Mo. App. E.D. 1981)). Thus, " [a] claim of error not presented to the trial court is not preserved for appellate review[,]" and this Court is within its discretion to deny the claim without further consideration. Id. at 330.

Here, Mother did not object to the trial court's failure to comply with Section 211.459. In fact, on the day of trial, Mother herself requested a continuance for other reasons. Mother's claim is not preserved, and she does not request plain error review under Rule 84.13(c), Missouri Court Rules (2014).[6] Additionally, Mother makes no claim she suffered any manifest injustice or miscarriage of justice due to the delay in holding the dispositional hearing. Mother's sole point is denied.

Decision

The trial court's judgment is affirmed.

NANCY STEFFEN RAHMEYER, J. - CONCURS

GARY W. LYNCH, J. - CONCURS


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