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In re E.B.R.

Court of Appeals of Missouri, Western District

November 1, 2016

E.R. (FATHER), Appellant. JUVENILE OFFICER, Respondent,

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable John M. Torrence, Judge

          Before Division One: Thomas H. Newton, Presiding Judge, Cynthia L. Martin, Judge and Edward R. Ardini, Jr., Judge

          Cynthia L. Martin, Judge

         E.R. ("Father") appeals from the trial court's entry of a judgment terminating his parental rights to E.B-R. and T.R-B. ("Children"). Father argues that the trial court erred by concluding that he was unfit to be a party to the parent and child relationship under section 211.447.5(6)[1] because it applied obsolete statutory language; because the evidence was not sufficient to find him unfit; and because the trial court failed to make best interest findings required by section 211.447.7. We affirm.

         Factual and Procedural Background

         Father is the biological father of E.B-R., born May 16, 2005, and T.R-B., born May 16, 2006.[2] The Children were placed in the care of the Children's Division on July 6, 2012 following concerns that the Children's mother, T.B. ("Mother"), was dealing with untreated mental health and substance abuse issues, and was subjecting the children to physical abuse. When the Children's Division arrived at Mother's home, the Children were not there. Mother told the Children's Division that the Children were with her sister, but they were later discovered at Father's home. Because Father is a registered sex offender, the children were removed from Father's home.

         Father is a registered sex offender because he was convicted of sodomy in February, 1996, following a guilty plea. He had been accused of engaging in deviate sexual intercourse and sodomy with the three-to-four-year-old daughter of his then girlfriend. Father was sentenced to ten years' imprisonment, and was recommended for treatment pursuant to section 559.115. Father was released from prison in August 1996, and was placed on probation until August 2001. Father was discharged from probation on October 31, 2003. The Children were thus born after Father's terms of incarceration and probation were completed.

         While the Children were in the custody of the Children's Division, Father participated in individual therapy which included counseling regarding his crime, and which included assistance with grieving the loss of his children, as Father realized they most likely could not return to his home. Father spoke with his counselor about his desire to be involved in helping to provide long-term placement for his children. Father was not subject to a formal written services agreement. He was permitted weekly supervised visits with the Children, and rarely missed or cancelled a visit. Father's interaction with the Children was reported to be appropriate, though his visits were supervised given his status as a registered sexual offender.

         On February 6, 2014, and after the Children had been in the custody of the Children's Division for more than eighteen months, the Juvenile Officer filed a petition for termination of parental rights against both Father and Mother, believing the Children were in need of a permanent placement. In a March 20, 2014 report, the Children's Division noted that Mother had not visited the Children since they came into care in July of 2012. With respect to Father, the report noted that:

[Father] is not a reunification resource; due to his criminal conviction of Sodomy with a four year old female in 1998.[3] Missouri statute prevents [Father] for [sic] being a reunification resource pursuant to 210.117 RSMo and 211.038 RSMo.

         The petition to terminate Father's rights relied exclusively on section 211.447.5(6), and alleged that Father "is unfit to be a party to the parent and child relationship because of conditions which relate to the parent/child relationship of a duration or nature that render him unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental or emotional needs of the [Children]."

         After the petition to terminate parental rights was filed, Mother began participating in services provided by the Children's Division. As a result, and based on Mother's progress, the Children's Division voluntarily dismissed it efforts to terminate Mother's parental rights on January 8, 2015. The Children were returned to Mother's custody in May of 2015.

         The petition to terminate Father's parental rights remained pending, however, because on November 13, 2014, several months after the petition had been filed, Father was charged with first degree child molestation. The charge related to conduct involving a three-year-old victim that occurred between April and May of 2007, and thus after the Children were born. Father was convicted following a jury trial on October 15, 2015, and was sentenced to life imprisonment as a predatory sexual offender.

         While Father's criminal charges were pending, an adjudication hearing on the petition to terminate Father's parental rights was continued several times. After Father's 2015 conviction, the Juvenile Officer was granted leave to file an amended petition to add factual allegations regarding Father's conviction for child molestation. The petition continued to rely, however, solely on section 211.447.5(6) as the basis to terminate Father's parental rights.

         Following a trial in November 2015, the trial court entered its judgment on March 9, 2016 terminating Father's parental rights over the Children pursuant to section 211.447.5(6) ("Judgment"). This appeal followed.

         Standard of Review

         A trial court has the authority to terminate the rights of a parent to a child upon petition by the juvenile officer if two conditions are met: first, if there is "clear, cogent and convincing evidence that [statutory] grounds exist for termination, " and second, termination must be in the best interest of the child. Section 211.447.6; In re P.L.O., 131 S.W.3d 782, 788 (Mo. banc 2004).

         Evidence relied on to establish a statutory ground for termination is clear, cogent and convincing if it "instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true." In re K.A.W., 133 S.W.3d 1, 12 (Mo. banc 2004). "Accordingly, this standard of proof may be met although the court has contrary evidence before it." In re Adoption of W.B.L., 681 S.W.2d 452, 454 (Mo. banc 1984). The clear, cogent and convincing standard "operates as a protection of the 'fundamental liberty interest of natural parents in the care, custody, and management of their child.'" In re B.H., 348 S.W.3d 770, 776 (Mo. banc 2011) (quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982)).

         Upon review, this court must affirm a termination of parental rights "unless the 'record contains no substantial evidence to support the decision, the decision is against the weight of the evidence, or the trial court erroneously declares or applies the law.'" In re S.M.H., 160 S.W.3d 355, 362 (Mo. banc 2005) (quoting Murphy v. Carron,536 S.W.2d 30, 32 (Mo. banc 1976)). We defer to the trial court on issues of credibility and "should review conflicting ...

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