Court of Appeals of Missouri, Eastern District, Fourth Division
IN THE INTEREST OF: S.E. AND B.E.
from the Circuit Court of Washington County 16WA-JU00112
& 16WA-JU00113 Honorable Sandy Martinez
Native Village (the "Tribe") appeals from the trial
court's Judgment Terminating Parental Rights
("Judgment") which terminated N.W.'s
("Mother") parental rights to her children, S.E.
and B.E. (collectively, the "Children"). We affirm.
and Procedural Background
11, 2015, because Mother was failing to provide a fit and
sanitary home for the Children and failing to address several
medical issues from which the Children suffer, the Juvenile
Officer of Washington County ("Juvenile Officer")
filed a petition against Mother alleging abuse and neglect of
the Children. Mother, herself, purportedly suffers from
certain medical conditions, which contributed to her
inability to care for the Children, and the Children were
placed in the protective custody of the Missouri Department
of Social Services, Children's Division
("Division"). As Mother and the Children are of
Native American or Alaskan heritage, the Indian Child Welfare
Act of 1978, 25 U.S.C. Sec. 1901 et seq.
("I.C.W.A."), applied to the proceedings, and on
February 23, 2016, in order to comply with a requirement
contained therein, the Division sent notice of the
proceedings to the Tribe. On March 31, 2016, the Tribe,
pursuant to Section 1911(c) of the I.C.W.A., filed a Motion
to Intervene, which was granted on April 29, 2016.
November 14, 2016, the Juvenile Officer filed a Petition for
Termination of Parental Rights, alleging that Mother's
conduct placed the children in "imminent risk of serious
physical or emotional damage" and asked the trial court
to find the same beyond a reasonable doubt. Thereafter,
Mother discussed with her counsel the option of consenting to
the termination, apparently understanding that she was
incapable of properly caring for the Children. As a result,
and with consent of Mother's counsel, on December 13,
2016, the Deputy Juvenile Officer traveled to Mother's
home with counsel for the Children's father
("Father's Counsel") to discuss Mother's
consent to the termination and to explain the forms
effectuating such consent. While at Mother's home, the
Deputy Juvenile Officer explained the forms to Mother, and
Mother, upon indicating that she understood them, signed
separate documents entitled "Consent to Termination of
Parental Rights and Adoption" for both Children.
December 19, 2016, the trial court held a hearing for the
termination of Mother's parental rights at which the
Juvenile Officer, Mother, and the Children's father were
represented by their respective counsel; Mother, and the
Children's father, however, did not themselves appear.
Counsel for the Tribe appeared by phone. At the hearing, the
Deputy Juvenile Officer testified that the consent forms were
read and explained to Mother in English, Mother's primary
language. The Deputy Juvenile Officer noted that Mother had
an opportunity during this time to ask questions and that she
did not appear to be under the influence of any drugs or
alcohol. The Deputy Juvenile Officer further confirmed that
once the explanation of the forms was complete, Mother
indicated her understanding and signed the forms, which were
notarized by Father's Counsel. Following the Deputy
Juvenile Officer's testimony, Mother's consents were
then entered into evidence without objection from the Tribe.
Dawn Turnbough ("Turnbough"), a Children's
Service Specialist with the Division, testified as to her
opinion regarding whether the Children would suffer serious
emotional or physical harm if they were to remain with
Mother. After testifying as to her qualifications, including
her having obtained multiple degrees in social work, her
twenty-two years of work experience with the Division, and
her continuing education for child welfare practice, the
Juvenile Officer sought to certify Turnbough as an expert
witness. None of the parties objected, the trial court
certified Turnbough as an expert, and Turnbough testified
that she believed the Children did face serious emotional or
physical harm if they remained with Mother.
the trial court sought the parties' recommendations, and
the Juvenile Officer requested the termination of
Mother's parental rights. The Tribe, in turn, explained
that while it did not object to the termination, it did
prefer to see the Children placed with other family members.
Mother's counsel then reiterated to the trial court that
Mother consented to the termination. Seeing no objection, the
trial court found "beyond a reasonable doubt all the
allegations pled[, and] order[ed] that the rights of [Mother]
be terminated." A written Judgment was entered on
January 25, 2017 and provided, in part, that "the Court
finds clear, cogent, and convincing evidence that: . . .
[t]he continued custody of the [Children] by [Mother] is
likely to result in serious emotional or physical damage to
the [Children]." The Tribe has since filed both a motion
to transfer jurisdiction, to which the Juvenile Officer has
responded with objections, as well as a motion requesting a
hearing regarding the placement of the Children; both motions
remain pending. The Tribe now appeals the trial court's
Court "will affirm a trial court's judgment
terminating parental rights unless it is not supported by
substantial evidence, it is against the weight of the
evidence, it erroneously declares the law, or it erroneously
applies the law." In re J.D.P., 406 S.W.3d 81,
83 (Mo. App. E.D. 2013) (citing In re S.M.H., 160
S.W.3d 355, 362 (Mo. banc 2005)). "As a practical
matter, this means the judgment will be reversed only if we
are left with the firm belief that the [decision] was
wrong." Id. In termination of parental rights
cases, the trial court must find by "clear, cogent, and
convincing evidence that one or more" statutory grounds
for termination exists. In re Adoption of C.M.B.R.,
332 S.W.3d 793, 85 (Mo. banc 2011). On review, conflicting
evidence is considered "in the light most favorable to
the judgment of the trial court." In re C.M.H.,
408 S.W.3d 805, 809 (Mo. App. S.D. 2013) (citing In re
A.S.W., 137 S.W.3d 448, 452 (Mo. banc 2004)). The Court
must then determine "whether termination of parental
rights was in the best interest of the child." In
Interest of J.P.B., 509 S.W.3d 84, 90 (Mo. banc 2017)
(quoting J.A.R. v. D.G.R., 426 S.W.3d 624, 626 (Mo.
banc 2014)). While at the "trial level, the standard of
proof for this best interest inquiry is a preponderance of
the evidence[, ] on appeal, the standard of review is abuse
of discretion." Id.
Tribe raises three points on appeal arguing that the
termination of Mother's parental rights was improper.
First, the Tribe asserts that Mother's consent to the
termination was invalid under Section 1913(a) of the I.C.W.A.
Second, the Tribe argues that the trial court's findings
were insufficient under both Section 211.447 RSMo.
and Section 1912 of the I.C.W.A. Third, the Tribe claims that
Turnbough was improperly certified as an expert witness under
Section 1912(f) of the I.C.W.A. The Tribe argues that, due
to these errors, Mother's parental rights were invalidly
terminated and that the case should be remanded for
additional evidence and more appropriate findings.
we may "consider the merits of this appeal, we must
sua sponte determine whether we have authority to do
so." In re G.G.B., 394 S.W.3d 457, 461-62 (Mo.
App. E.D. 2013) (citing City of Portage Des Sioux v.
Klaus Lambert, 323 S.W.3d 462, 464 (Mo. App. E.D.
2010)). This is because "an individual who is not a
parent in the eyes of the law has no legal interest in the
child." In re J.L.G., 399 S.W.3d 48, 51 n.1
(Mo. Ap. S.D. 2013) (citing In re Q.M.B., 85 S.W.3d
654, 662 (Mo. App. W.D. 2002)). Nor may a non-parent
"assert parental rights for [the parent]."
Id. Since Mother is not a party to this appeal, the