IN THE INTEREST OF: E.B.R. AND T.R.B.;
E.R. (FATHER), Appellant. JUVENILE OFFICER, Respondent,
from the Circuit Court of Jackson County, Missouri The
Honorable John M. Torrence, Judge
Division One: Thomas H. Newton, Presiding Judge, Cynthia L.
Martin, Judge and Edward R. Ardini, Jr., Judge
Cynthia L. Martin, Judge
("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) 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.
and Procedural Background
is the biological father of E.B-R., born May 16, 2005, and
T.R-B., born May 16, 2006. 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.
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.
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.
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
[Father] is not a reunification resource; due to his criminal
conviction of Sodomy with a four year old female in
1998. Missouri statute prevents [Father] for
[sic] being a reunification resource pursuant to 210.117 RSMo
and 211.038 RSMo.
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
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.
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.
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.
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.
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).
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)).
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 ...