Court of Appeals of Missouri, Western District, Third Division
FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE
HONORABLE DAVID M. BYRN, JUDGE
Gary D. Witt, Presiding Judge, Lisa White Hardwick, Judge and
Edward R. Ardini, Jr., Judge.
R. ARDINI, JR., JUDGE.
appeals the Judgment of the Circuit Court of Jackson County
terminating his parental rights. On appeal, Father alleges
that (1) there was not clear, cogent, and convincing evidence
to support termination of his parental rights on the
statutory grounds specified in the trial court's
Judgment; (2) the court, in terminating his parental rights,
misapplied section 221.447; and (3) the trial court erred in
not returning Child to Father pursuant to section 211.037.
The Judgment is affirmed.
& FACTUAL BACKGROUND
consider the evidence in the light most favorable to the
[trial] court's ruling and ignore any evidence to the
contrary." In re S.D., 472 S.W.3d 572, 573 (Mo.
App. W.D. 2015) (citations omitted). Child was born on July
21, 2008, and lived with Mother and Child's
great-grandmother. In May 2011, a petition alleging parental
abuse and neglect was filed. The court took temporary
protective custody of Child and ordered that the
Children's Division immediately begin proceedings to
determine the paternity of Child. In July 2011, Child was
placed with her current foster family. The initial case was
dismissed and refiled on August 12, 2011. Thereafter, Child
was found to be in need of the care and protection of the
effort to reunify Mother and Child, the court ordered
services such as visitation, assignment of a parent aide, and
individual counseling. These efforts were not successful and,
in July 2012, the permanency goal was changed to termination
of parental rights.
first become aware that Mother was pregnant with Child
approximately three months into the pregnancy. Although he
knew of his potential paternity, Father made no effort to
establish a relationship with Child and provided no financial
support. This lack of financial contribution to Child's
care continued throughout the pendency of this action despite
Father earning significantly more income each month than he
incurred in living expenses. Moreover, while Father feared
that Child was at risk of physical harm while in Mother's
custody, he took no action to secure Child's safety.
February 6, 2014, the current caseworker performed an on-line
search and identified an address for Father. After receiving
a letter regarding his possible paternity, Father contacted
the caseworker later that month and agreed to a paternity
test. Father spoke with the caseworker again on March 6,
2014, this time with the assistance of an interpreter. During
the meeting, Father expressed concerns because he was not a
legal citizen. Father's paternity was established on
March 19, 2014, and Father and the caseworker met on May 16,
2014, to discuss the results. At the next permanency review
hearing, Father appeared and was appointed counsel. The
hearing was otherwise continued.
August 12, 2014, the court ordered that Father be allowed
therapeutically supervised visits, ordered initiation of an
Interstate Compact for the Placement of Children
("ICPC") home study due to Father being a resident
of Kansas and, pursuant to the request of Father, ordered
that mediation occur between Father and the foster parents.
During a visit on September 25, 2014, Father indicated that
he would like to pursue legal custody and that he had started
to contact immigration attorneys.
October 7, 2014, a permanency review hearing was held, and
the court ordered that Father be provided up to forty hours
per month of visitation supervised by a bilingual parent
aide. The Children's Division was given discretion to
include unsupervised time during Father's visitation as
deemed appropriate. Father began supervised visits with Child
in November. The visits were initially supervised by the
caseworker and later were supervised by a parent aide who was
next permanency review hearing was held on February 19, 2015.
Father's visitation remained supervised, but the court
ordered that parent aide services be increased to eight hours
per week and that the Children's Division move promptly
towards "sandwiched" visits in an effort to provide
Father additional time to work with Child on their
relationship. In efforts to meet the court's order that
Father receive eight hours of supervised visits per week,
Father was provided with the dates and times that Child was
available for visits as well as her extracurricular
activities and school events schedules. In addition, the
court allowed the foster parents to supervise visits between
Father and Child.
permanency review hearing was held on May 26, 2015, at which
time the court ordered mediation. Father and the foster
parents participated in mediation on July 20, 2015, agreeing
to exchange residential and email addresses as well as phone
numbers, that a relationship between Father and Child was in
Child's best interest, and that visits in Father's
home was an appropriate next step. Although Father received
ICPC-approval for home visits and possible placement, he
cancelled the first home visit scheduled for July 29, 2015.
goal for Father was changed from reunification to termination
of parental rights at the permanency review hearing held on
August 13, 2015. The court found that Father had "been
participating in visitation with the child for approximately
one year in order to establish a relationship . . . but
little to no progress has been made" and that Father had
declined a Spanish-speaking aide and English as a Second
Language ("ESL") classes. The court also found that
"recently his sister, with whom he lives, has refused to
allow visitation to occur in her home" and that Father
had "cancelled a number of visits due to not having gas
money." Additionally, although "[C]hild ha[d]
become comfortable with her father, " she had
"indicated she would prefer visits occur in the foster
home." A Petition for Termination of Parental Rights was
filed November 5, 2015.
next permanency review hearing was held on December 3, 2015.
The permanency goal remained termination of parental rights,
but the court ordered that Father continue to be provided
supervised visitation. The caseworker submitted to the court
a report dated December 8, 2015, and recommended termination
of parental rights for Father, stating that Child had been
with her current foster family for four years with no
permanency, there was "still work to be completed in
developing a relationship between the two[, ]" she did
not know what Father's parenting of Child would look like
since home visits were unable to occur, and "[Child]
would like to continue with life as she knows it."
March 2016, in-home visitation began. On May 26, 2016, a
permanency review hearing was held and the court ordered that
Father continue to have supervised and "sandwiched"
visits and that he provide 24-hour advanced notice if he was
cancelling a visit. Child had previously expressed a desire
to decrease visits, and they were decreased to twice a month.
was held on October 24 and 25, 2016. At the time of trial,
Father was receiving two visits per month, one at his home
and one in the community. The visits were
"sandwiched" in that they began and ended with the
parent aide present but were otherwise unsupervised.
trial, the court took judicial notice of the underlying
jurisdictional proceedings, and the following witnesses
testified: Melanie Hicks, the caseworker from January 2014 to
September 2014 and supervisor since that time; Nicole Cole,
the parent aide for Mother from April 2014 to December 2014;
Sarah Wright, the child's therapist throughout the case;
Rokea Wright, the parent aide for Father from November 2014
to May 2016; and Tanisha Davis, the caseworker from October
2014 to the time of trial. Father and his sister also
testified. Numerous exhibits were admitted, including the
caseworker's TPR report dated December 8, 2015; records
from Child's therapist; the paternity results regarding
Father and Child; correspondence from the caseworkers ...