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In re N.L.W.

Court of Appeals of Missouri, Southern District, Second Division

September 20, 2017

IN THE INTEREST OF: N.L.W. and J.D.W.,
v.
MISSISSIPPI COUNTY JUVENILE OFFICE, Respondent. J.D.W., Natural Father, Appellant,

         APPEAL FROM THE CIRCUIT COURT OF MISSISSIPPI COUNTY Honorable David A. Dolan, Circuit Judge

         J.D.W. ("Father") appeals the judgments terminating his parental rights to his daughter, N.L.W., and his son, J.D.W.[1] ("the Children").[2] Finding Father has failed to convince us of any trial court error warranting reversal, we affirm the judgments of the Juvenile Division of the Circuit Court of Mississippi County (the "trial court").[3]

         Factual and Procedural Background

         Our recitation of the relevant facts is in accord with the principle that we view the evidence in the light most favorable to the judgment. See J.A.R. v. D.G.R., 426 S.W.3d 624, 626 (Mo. banc 2014). "Appellate courts will defer to the trial court's credibility assessments. When the evidence poses two reasonable but different inferences, this Court is obligated to defer to the trial court's assessment of the evidence." Id. (internal quotation and citation omitted). '"All fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached."' Id. (quoting Rule 73.01(c)).[4] "[W]e are not free to credit evidence or inferences that favor the terminated parent. To the contrary, we must ignore these." In re Adoption of C.M., 414 S.W.3d 622, 629 (Mo.App. S.D. 2013) (internal quotation and citation omitted). "In reviewing questions of fact, the reviewing court is to recognize that the circuit court is free to disbelieve any, all, or none of the evidence, and it is not the reviewing appellate court's role to re-evaluate the evidence through its own perspective." J.A.R., 426 S.W.3d at 627. Viewed in this context, the following facts are pertinent to the current appeal.

         The record reveals that J.D.W. is the biological father of N.L.W., born in 2005, and J.D.W., born in 2007 ("the Children"). On April 14, 2014, the Children came under the jurisdiction of the Juvenile Division of Mississippi County. The Children were taken into protective custody after Mother's arrest for possession of drug paraphernalia; unsanitary home conditions; educational neglect; Mother's positive tests for methamphetamines and other drugs; and three counts of endangering the welfare of a child. Father was in the Mississippi Count Jail at the time, awaiting trial on a charge of sexual abuse in the first degree with a victim under the age of 18, pursuant to section 566.100, [5] having been arrested on November 29, 2012. The Children remained in the custody of the Children's Division of the Missouri Department of Social Services (the "Children's Division") from April 14, 2014, through the date of the termination of parental rights hearing.

         Father remained in jail until he was released on bond on September 9, 2014. Following a jury trial on May 7, 2015, Father was found guilty of the class C felony of sexual abuse in the first degree. On July 9, 2015, Father was sentenced to seven years in the Missouri Department of Corrections ("DOC") with a release date in October 2020. Father would potentially be eligible for parole as of June 2018, if he were to complete a sex offender program.[6]

         A total of six Written Service Agreements ("WSAs") were implemented for Father from the time the Children were placed into protective custody, through Father's incarceration.[7]Pursuant to the agreements, Father agreed to write letters to the Children at least weekly, and later monthly; maintain contact with the Children's Division; maintain safe and adequate housing; obtain and maintain employment; attend all FST[8] meetings and court hearings; attend parenting classes; and obtain information about parenting and fatherhood programs while in prison. The Children's Division also requested Father attend a sex offender program.

         Father failed to comply with most of the goals outlined in the WSAs. Father wrote letters to the Children while he was in jail awaiting trial, and again after he was transferred to the DOC. However, he did not write any letters while he was out of jail on bond awaiting trial and sentencing. Father was subject to a no-contact order with the Children due to his sexual abuse of a minor; Father was advised by Children's Division representatives to continue writing to the Children, that the letters would be delivered to the Children once the no-contact order was no longer in place, and that writing would show his attempts at continuing to have contact with the Children. Nevertheless, Father refused.

         While Father had some contact with the Children's Division at various times, he failed to keep in consistent contact as required. Father failed to notify the Children's Division when he was released on bond in September 2014. The Children's Division was unable to locate Father, or obtain his address and phone number, until he appeared at an October 2014 hearing.

         Father also failed to maintain safe and adequate housing. At no time after the WSAs were entered into did Father obtain such housing.

         Father had mixed results in fulfilling his obligation to obtain and maintain employment. While Father did work for a farmer until December 2014, he was then laid off. He did not obtain work again until April 2015. He then worked until he was delivered to the DOC in July 2015.

         Since April 2014, Father contributed nothing financially for the care and maintenance of the Children. Father was released on bond in September 2014, and sometime thereafter, began working until July 2015. In addition to wages, Father also received a Christmas bonus, but did not contribute financially to the Children, nor bought any birthday or Christmas gifts. While in the DOC, Father initially received a stipend of $7.50, which was later increased to $8.50. Father saved that money to buy himself a fan, and then was saving up to buy himself a television. The only thing the Children received from Father were some letters and drawings, but only when Father was in jail.

         As to Father's obligation to attend all FST meetings and court hearings, Father's compliance was deficient. While Father was incarcerated and awaiting trial, he was brought to court to attend the juvenile hearings. He was not able to participate in the FST meetings while in jail, but following the meetings, the Children's Division would contact Father to discuss the meetings. When Father was out of jail on bond, awaiting trial and sentencing, Father was not consistent in attending these meetings. Since Father was transported to the DOC, Father has not participated in FST meetings or court hearings. The Children's Division continued to communicate with Father following the FST meetings.

         Father has not participated in any parenting classes. He failed to even initiate contact with any agency about parenting classes until "sometime after he was transferred to DOC." Father, at all times, has openly refused to participate in a sex offender program as requested by the Children's Division.

         On July 18, 2016, a juvenile officer filed, on behalf of the Children, petitions for termination of parental rights, pursuant to section 211.447. The pleadings asserted, in relevant part, that:

5. The [Children are] now and [have] at all times since on or about April 14, 2014, been under the jurisdiction of this [c]ourt . . ., when said [children were] taken into protective custody and placed in the temporary legal and physical custody of the . . . Children's Division due to allegations of . . . drug use in the home by [Mother].
. . . .
7. The [Children have] remained in protective custody/alternative care at all times since . . . adjudication[, ] [which occurred on or about April 16, 2014].
8. Pursuant to Section 211. 447.5(4) RSMo., the parental rights of [Father], in and to said [children] should be terminated for the reason that [o]n or about May 7, 2015, [Father ] was found guilty of the C Felony of Sexual Abuse in the First Degree in violation of Section 566.100 RSMo. where the victim was a child and a member of the family who resided with [Father] and was related to him within the third degree of consanguinity or affinity.

         The pleadings also asserted in part, pursuant to section 211.447.5(3), that: (1) the Children had been under the jurisdiction of the Juvenile Division for a period of one year, and that conditions that led to the assumption of jurisdiction still persist-and/or conditions of a potentially harmful nature continue to exist-so there was little likelihood that those conditions would be remedied so that the Children could be returned to Father in the near future; (2) Father failed to achieve any significant or consistent success with the goals outlined in the WSAs due to his failure to work with the Children's Division case managers, and his failure to follow through with the recommended and offered services; (3) there was no evidence that Father had a mental condition; and (4) there was no evidence that Father had a chemical dependency.

         Finally, pursuant to section 211.447.7, the pleadings asserted that the Children had little emotional ties to Father; Father had not visited with the Children since they were taken into protective custody due to Father's felony sexual abuse conviction; that it was unlikely additional services would bring about a lasting parental adjustment enabling the Children to return to Father within an ascertainable period of time; Father consistently showed a disinterest and lack of commitment to the Children by his actions; and Father had been convicted of a felony offense of such a nature that the Children would be deprived of a stable home for a period of years.

         A hearing was held on September 30, 2016. The trial court took judicial notice of the Children's underlying juvenile files. Counsel for the Juvenile Office notified the trial court of an error in the pleadings for termination of parental rights: in paragraph 8 of the pleadings the assertion was made that Father had been convicted of abusing a child under the age of 18 living in Father's home or related to Father; counsel for the Juvenile Office indicated it had been discovered that the child victim was not related to Father and did not reside in Father's home. The attorney for the Juvenile Office then moved to dismiss paragraph 8 from the pleadings; without objection, the trial court dismissed paragraph 8.

         On November 21, 2016, the trial court entered two judgments, one for each child, terminating Father's parental rights. The judgments included substantially similar findings for each child. This appeal followed.

         In nine points, Father asserts the trial court erred: (1) in relying on Father's conviction in terminating his parental rights pursuant to section 211.447.5(3) because the conviction did not involve a child related to Father or living with Father; (2) because the judgments are defective in relying on section 211.083, in that such section does not authorize termination of parental rights; (3) terminating Father's parental rights based solely on his incarceration because Father has not abandoned the Children; (4) terminating Father's parental rights based on section 211.038 because it is not a statutory factor to be considered in termination of Father's parental rights; (5) because the judgments are against the weight of the evidence as they rely on section 211.038 and said reliance is premature as Father had not fully exercised his post-conviction relief of his criminal conviction; (6) because the judgments are against the weight of the evidence in finding Father did not make progress on the terms of the WSAs which would allow termination under section 211.477.5(3) as Father did comply with some of the terms; (7) in terminating Father's rights pursuant to section 211.477.5(3)(b) because there was evidence of success of the Children's Division to aid Father and the Children's Division ceased efforts prematurely; (8) because termination of Father's parental rights was not in the best interest of the Children because the trial court's findings pursuant to section 211.447.7 is against the weight of the evidence; and (9) because Father received ineffective assistance of counsel.

         Principles of Review

         In reviewing termination of parental rights cases, like all types of bench-tried cases, this Court is mindful "that circuit courts are better positioned to determine witness credibility and weigh evidence in the context of the whole record than an appellate court." J.A.R. v. D.G.R., 426 S.W.3d 624, 626 (Mo. banc 2014). As previously explained by this Court:

This Court reviews whether clear, cogent, and convincing evidence was presented to support a statutory ground for terminating parental rights under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Therefore, the trial court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. The judgment will be reversed only if we are left with a firm belief that the order is wrong.
Conflicting evidence will be reviewed in the light most favorable to the trial court's judgment. Appellate courts will defer to the trial court's credibility assessments. When the evidence poses two reasonable but different inferences, this Court is obligated to defer to the trial court's assessment of the evidence. . . . .
After this Court determines that one or more statutory ground has been proven by clear, convincing, and cogent evidence, this Court must ask whether termination of parental rights was in the best interest of the child. 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. (quoting In re Adoption of C.M.B.R., 332 S.W.3d 793, 815-16 (Mo. banc 2011)). This Court has "laid to rest any argument that the 'clear, cogent, and convincing' burden of proof requires this Court to consider any contrary evidence when reviewing whether the judgment is supported by substantial evidence." Id. at 626 n.4.
"In reviewing questions of fact, the reviewing court is to recognize that the circuit court is free to disbelieve any, all, or none of the evidence, and it is not the reviewing appellate court's role to re-evaluate the evidence through its own perspective." Id. at 627. "The trial court receives deference on factual issues because it is in a better position not only to judge the credibility of the witnesses and the persons directly, but also their sincerity and character and other trial intangibles which may not be completely revealed by the record." Id. . . .

In the Interest of J.P.B., 509 S.W.3d 84, 89-90 (Mo. banc 2017).

         Analysis

         Point I

         In his first point, Father argues that the trial court erred in terminating his parental rights, pursuant to section 211.447.5(3), [9] in that although Father had been convicted of sexual abuse in the first degree, with a victim under the age of 18, the child victim was not related to Father and did not reside with Father.

         The termination pleadings of July 18, 2016, included two statutory bases for terminating Father's parental rights: (1) section 211.447.5(4), [10] in that Father "was found guilty of the C Felony of Sexual Abuse in the First Degree in violation of Section 566.100 RSMo. where the victim was a child and a member of the family who resided with [Father] and was related to him[]"; (2) section 211.447.5(3), in that Father failed to rectify the conditions which led to the assumption of jurisdiction by the Juvenile Division.

         At trial, the Juvenile Office noted that its pleadings were incorrect, insofar as Father's sexual abuse victim was not, as alleged in the pleadings, a member of Father's household or related to Father. As a result, the Juvenile Office dismissed the section 211.447.5(4) ground, and the trial court sustained the dismissal.

In his brief, Father suggests that
[t]he trial court cites the fact that [Father] had been convicted of a Class C felony of sexual abuse in the first degree in violation of Section 566.100 R.S.Mo when making a determination that [Father]'s parental rights should be terminated. However, the Juvenile Office proceeded for ...

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