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In re A.F.

Court of Appeals of Missouri, Western District, Second Division

March 27, 2018

In the Interest of A.F., J.F., J.F.;
C.F. (Natural Father), Appellant. JUVENILE OFFICER, Respondent,

          Appeal from the Circuit Court of Jackson County The Honorable David M. Byrn, Judge

          Before James E. Welsh, P.J., and Alok Ahuja and Anthony Rex Gabbert, JJ.

          Alok Ahuja, Judge.

         C.F. (Father) appeals the circuit court's judgment terminating his parental rights over his three children. We reverse.

         Factual Background

         Father and J.D. (Mother) had three biological children: a daughter, A.F. (born in October 2007); and two sons, J.C.F. (born in April 2009), and J.A.F. (born in January 2014).

         On April 17, 2015, the children were removed from their school and daycare following allegations that (1) Father had engaged in acts of domestic violence against Mother, which may have contributed to her disappearance; and (2) Father refused to obtain necessary mental health services for A.F. The children were placed in licensed foster homes.

         On the same day, the Juvenile Officer filed a petition in the Circuit Court of Jackson County, which prayed that the circuit court take custody of the children. The Juvenile Officer later filed a First Amended Petition, which alleged:

The children . . . are without proper care, custody and support necessary for their well-being and are subject to the jurisdiction of this Court pursuant to 211.031.1 RSMo in that the father neglects the children and their mental health needs.
• The mother's family has filed a Missing Person's [sic] report on the mother. The mother was last seen on or about September 11, 2014, when the child, [A.F.], witnessed her father push her mother.
• Additionally, within the past few months, the child, [A.F.], has suddenly began to exhibit symptoms consistent with trauma such as personality changes, including that she has stopped talking and wets herself frequently. The child's school contacted the father in an attempt to offer counseling services to the child because of her changes in personality and wetting herself, but the father refused to obtain recommended services for the child.
• The children are at risk of further harm or neglect absent the intervention of this Court.

         On June 5, 2015, Father entered into a stipulation in which he waived his right to a trial on the allegations of the Juvenile Officer's First Amended Petition, and stipulated "that the Juvenile Officer has sufficient evidence of a clear, cogent, and convincing nature to sustain the allegations in the petition."

         On June 17, 2015, the circuit court assumed jurisdiction over the children, and ordered that they be committed to the custody of the Children's Division for appropriate placement. The court ordered supervised visits to be conducted in Father's home. A disposition hearing was held on July 13, 2015, at which the court declared the permanency goal to be reunification. To that end, the court ordered both the children and Father to complete individual therapy.

         On December 8, 2015, Father filed a motion seeking to have the court release its jurisdiction over the children, and place the cause on an expedited track for reunification. The Juvenile Officer and the Guardian ad litem opposed Father's motion. On January 13, 2016, a commissioner issued Findings and Recommendations which recommended that Father's motion be denied, and that the court continue to exercise jurisdiction over the children. The commissioner's Findings and Recommendation were adopted by the court on February 4, 2016. The Findings state:

The primary barrier to reunification for the father with the children is his inability to control his anger and the immediate and direct impact this has on his ability to make and prioritize decisions regarding the welfare of his children.
The father has obstructed the ability of the Children's Division to provide appropriate services to the father to aid in the process of reunification. The father has repeatedly engaged in shouting, over-talking, threatening and aggressive language and behavior toward the case worker and other professionals involved in his case such that they are unable to work with the father. The father refuses to accept the professional's interventions or advice. The father has been dishonest and evasive in addressing his circumstances and his prior history, which impacts the efficacy of services. An example of this is the father's refusal to testify when called as a witness in these proceedings: he simply left the court house and did not return.

         The Findings also stated that Father "has attempted to intimidate his children into making statements regarding reunification." The Findings noted that Father had rejected the therapist recommendations offered by the Children's Division, and had instead opted to retain therapists of his own choosing. The court found Father's therapists not to be credible. The court also found "no basis to infer that the father has made any progress in therapy to address his anger control or his understanding of the impact his behavior has on the welfare of his children." The court discussed the reported allegations of sexual abuse by the Father, and noted that Father's claim of mistaken identity did not make sense in context; but the court ultimately refused to make any finding concerning the credibility of the sexual abuse report.

         The court ordered the Father to participate in the following services: (1) individual therapy with a domestic violence component; (2) family therapy upon recommendation by the children's therapist; and (3) intensive group parenting education classes. The court also included detailed instructions regarding visitation (which was no longer to be conducted at Father's home); the instructions included a warning that "[a] visit shall be terminated upon aggressive or unstable behavior of the father." The next court hearing was scheduled for April 6, 2016.

         Caseworkers from the Department of Social Services prepared a Permanency Plan and Report for the April 2016 hearing. The Report concluded that Father "is physically able to care for his children, " and "appears to be bonded with the children and care for the children." The Report also found, however, that Father: "has a history of not always protecting his children"; was manipulative; exhibited multiple behavioral signs typical of domestic violence perpetrators; struggled with impulse control and anger management; and had inappropriate emotional outbursts during visits with the children and when interacting with caseworkers. As a result, "[t]he Children's Division recommend[ed] that the goal be changed from reunification to adoption."

         On April 8, 2016, the commissioner issued Findings and Recommendations. The commissioner found that Father's "inability to control his anger, " and the effect this had on his children, remained the primary obstacle to family reunification. The Findings and Recommendations found that the Children's Division had engaged in reasonable efforts to achieve reunification by providing or offering a variety of services to Father and the Children, that the children had been under the jurisdiction of the court for more than twelve consecutive months, and that "there is [no] reasonable likelihood that reunification may be accomplished within the foreseeable future." Accordingly, the commissioner recommended "that permanency by way of termination of parental rights/adoption shall now be the goal." On April 12, 2016, the court adopted the commissioner's Findings and Recommendations.

         The Juvenile Officer filed Petitions for Termination of Parental Rights as to all three children on July 19, 2016.[1] Trial was held over the course of four days in January and February of 2017. The court entered judgments in April 2017, amended nunc pro tunc in May 2017, which terminated Father's parental rights over each of the children. The court's judgments as to the three children are identical in all material respects; we accordingly refer to them as a single "judgment" in this opinion.

         The judgment found that termination of Father's parental rights was justified on three separate statutory grounds. First, the circuit court found that termination was justified based on Father's abuse or neglect of the children under § 211.447.5(2).[2] The court noted that Father had stipulated in June 2015 that he had neglected the children. The court also found under § 211.447.5(2)(a) that Father "suffers from a mental condition that is either permanent or such that there is no reasonable likelihood . . . [it] can be reversed and which renders Father unable to knowingly provide the child[ren] with the necessary care, custody and control." The court found the psychologist retained by the Children's Division, William McDonnell, to be credible in his diagnosis of Father with "Personality Disorder NOS [(meaning, "Not Otherwise Specified"), ] possibly antisocial or narcissistic." The judgment found that Father is "in denial and minimizes the significance of his mental condition and behaviors, " which established that "Father cannot or will not address his mental health diagnosis." The judgment also found Father "demonstrates no insight into his mental condition nor willingness to address its role in causing the child[ren] to remain in care." The court found that Father "refused to participate in the type of therapy recommended by his psychological evaluation." The court noted that Father had instead opted to hire his own therapists, and found that he "did not fully disclose the relevant issues" and information to those therapists. The court accordingly gave little weight to the testimony of Father's therapists, and to the treatment they had provided to Father.

         Addressing the other factors listed in § 211.447.5(2), the court found: no evidence that Father had a chemical dependency (§ 211.447.5(2)(b)); no evidence Father had "committed severe or recurrent acts of physical, emotional or sexual abuse toward . . . the children" (§ 211.447.5(2)(c));[3] and no evidence Father had failed to provide "adequate food, clothing, shelter, education, or other care necessary for the child[ren]'s physical, mental or emotional health and development." § 211.447.5(2)(d).

         As a second basis for termination, the court found under § 211.447.5(3) that the children have been under the jurisdiction of the court for a period of more than one year, and that "[t]he conditions which led to the assumption of jurisdiction still persist and conditions of a potentially harmful nature continue to exist." The judgment found that Father failed or refused to "sincerely participat[e] in ordered services to address domestic violence and neglect"; Father failed "to rectify his parenting behaviors to ensure a safe home for the child and siblings in the future"; and Father continued "to deny or minimize his responsibility for domestic violence in the home." The judgment then addresses the factors listed in § 211.447.5(3). Under § 211.447.5(3)(a), the court found that Father "has failed to make progress in complying with the terms of the social service plan entered into with the Children's Division, " in large part based on the fact that he had failed to sincerely address the mental health condition diagnosed by McDonell. The court also noted that Father had been unable to control his emotions and anger during visits with the children, during interactions with caseworkers, and during court proceedings. With respect to § 211.447.5(3)(b), the court found that, despite the services offered or provided to him, Father had "failed to adjust his circumstances and conduct on a continuing basis so that he can provide a proper home for the [children], " since he had "fail[ed] and refuse[d] to address the reasons the children are in care, " and "remain[ed] in denial regarding the impact his actions have had on the children." Under § 211.447.5(3)(c), the court found that Father suffered from a mental condition which renders him unable to provide the children with appropriate care, based on the same grounds described in connection with the court's abuse or neglect finding. As with its abuse or neglect finding, the court found under § 211.447.5(3)(d) that there was no evidence that Father suffered from a chemical dependency.

         Third and finally, the court found that termination of Father's parental rights was justified under § 211.447.5(6). The judgment concludes, "[b]ased on the findings of fact [relating to abuse or neglect and failure to rectify] which are incorporated herein, " that Father was "unfit to be a party to the parent and child relationship, " because conditions existed which rendered him unable to provide for the children's needs, and which were unlikely to be rectified in the reasonably foreseeable future.

         After finding that grounds for termination existed, the court found termination to be in the best interests of the children. Although the judgment found that the children have emotional ties with Father, "the depth of that bond is relatively unknown" due to the children's inability to maturely discuss those issues. The judgment also found that Father had provided financial or other support to the children while they were in the court's jurisdiction, that he had maintained regular supervised visits with the children, and that "[t]here was no evidence of deliberate acts by any parent which the parents knew or should have known that subjects the child[ren] to a substantial risk of physical or mental harm." Nevertheless, the judgment noted that Father's conduct during visitation "was not conducive to" success "and overall interaction with the children, " that he had "not made sufficient ...

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