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In re E.P.

Court of Appeals of Missouri, Western District, Third Division

February 27, 2018

IN THE INTEREST OF: E.P., Plaintiff,
J.G. (FATHER), Appellant. UVENILE OFFICER, Respondent,


          Before Gary D. Witt, Presiding Judge, Lisa White Hardwick, Judge and Edward R. Ardini, Jr., Judge.


         Father 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;[1] and (3) the trial court erred in not returning Child to Father pursuant to section 211.037. The Judgment is affirmed.


         "We 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 court.

         In an 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.

         Father 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.

         On 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.

         On 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")[2] 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.[3]

         On 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 not bilingual.

         The 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.

         Another 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.

         The 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.

         The 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."

         In 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.

         Trial 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.

         At 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 ...

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