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In re S.E.

Court of Appeals of Missouri, Eastern District, Fourth Division

September 12, 2017

IN THE INTEREST OF: S.E. AND B.E.

         Appeal from the Circuit Court of Washington County 16WA-JU00112 & 16WA-JU00113 Honorable Sandy Martinez

          OPINION

          Mary K Hoff, Judge.

         Nenana 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.

         Factual and Procedural Background

         On June 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.")[1], 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.

         On 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.

         On 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.

         Thereafter, 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.

         Following, 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 Judgment.

         Standard of Review

         This 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.

         Discussion

         The 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)[2] of the I.C.W.A. Second, the Tribe argues that the trial court's findings were insufficient under both Section 211.447 RSMo. 2000[3] 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)[4] 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.

         Before 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 ...


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