Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF PHELPS COUNTY Honorable Mark D.
Calvert, Associate Circuit Judge
WILLIAM W. FRANCIS, JR., J.
("Father") appeals the judgment terminating his
parental rights to his son, J.A.L.
("Child"). Father raises four points on appeal.
Finding no merit to these points, we affirm the judgment of
the Juvenile Division of the Circuit Court of Phelps County
(the "trial court").
and Procedural Background
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). Viewed in this context, the
following facts are pertinent to the current appeal.
was born in September 2007, at which time Father was
incarcerated in the Dent County Jail. Father had been
convicted of second-degree statutory rape (section 566.034)
and second-degree statutory sodomy (section
566.064). On December 10, 2007, Father was sentenced
to "five years . . . on each Count" in the
Department of Corrections ("DOC").
December 12, 2013, Father pled guilty to the offense of
failure to register as a sex offender, pursuant to sections
589.400-425, in violation of section 589.425, RSMo Cum.Supp.
(2009). On February 6, 2014, Father was sentenced to four
years in the DOC for this violation.
January 14, 2015, Child was removed from the care of Mother
and placed in protective custody under the jurisdiction of
the Children's Division of the Missouri Department of
Social Services ("Children's Division"). Child
was placed with a family member ("S.M."); Father
was incarcerated in the DOC at that time, and for that
reason, Child could not be placed with Father.
February 4, 2015, Father was notified by Child's
caseworker, Leslie Higgins ("Higgins"), that Child
was taken into custody by the Children's Division.
March 23, 2015, Higgins received a letter from Father
requesting information about the case and requesting
permission to write Child. Between April 2015 and August 10,
2015, Father spoke with Higgins on the telephone three
times-on those three occasions, he expressed interest in
being involved in the case, writing to Child, and in
receiving updates about Child. During the call on August 10,
2015, Father reported he was scheduled to be released on
October 5, 2015, and that he would live in a halfway house
thereafter in St. Louis. Father stated that he would write a
letter to Child, through the case manager, as soon as he got
stamps. Father thereafter failed to send any letters to Child
through the case manager.
August 10, 2015 and September 15, 2016, Father made no
contact with, or inquiries to Higgins as to Child.
was released from prison on October 5, 2015, but made no
effort to contact Higgins regarding Child, and attended no
FST meetings or court hearings. Instead, Father went "on
the run" until March 2016. By "on the run, "
Father meant that "when [he] got out, [he] went on the
run instead of doing what [he] was supposed to do."
Specifically, Father said he was using marijuana and
methamphetamine while "on the run."
permanency review hearing on March 16, 2016, the primary
permanency goal for Child was changed to termination of
parental rights and adoption.
returned to prison sometime in March 2016, and was released
for a short time thereafter. He was recommitted to prison in
June 2016, for a failure to register as a sex offender. On
December 20, 2016, Father was released to the St. Louis
Community Release Center. However, Father failed to report to
the center upon his release from the DOC-a violation of
Father's parole-and Father was again incarcerated in the
19, 2016, a petition seeking termination of the parental
rights of both Father and Mother was filed.
was released on parole on February 22, 2017, to the home of
his aunt and uncle in Salem, Missouri. Between September 16,
2016 and February 22, 2017, Higgins had no communication from
Father regarding Child.
March 15, 2017, Father signed a written service agreement. On
March 31, 2017, the Children's Division filed a motion to
be relieved of the obligation of making reasonable efforts to
reunify Child with Father due to Father's prior felony
convictions for second-degree statutory rape and
second-degree statutory sodomy, pursuant to sections 210.117,
211.038, and 452.375.3.
trial court entered an order on April 25, 2017, relieving the
Children's Division of its obligation to make reasonable
efforts to reunify Child with Father.
3, 2017, Father filed a motion for visitation with Child.
Child's therapist, G. Brock Hussey ("Hussey"),
a licensed professional counselor, issued a report
recommending that no visitation occur between Child and
Father. Hussey stated that Child had developed a primary
relationship with S.M., which was necessary for healthy
development. Hussey indicated that Child demonstrated a
secure attachment to S.M., and had the tools and support
necessary to thrive into adulthood. Hussey could see no
benefit from forcing Child to engage in visitation with a man
he did not know or want to know, further complicating
Child's emotional attachments and wellbeing. Following a
hearing on July 19, 2017, the trial court denied Father's
motion for visitation.
26, 2017, an "Investigation and Social Summary Addendum,
" prepared by Higgins, was filed with the trial court.
The report indicated that Child had consistently stated he
did not want to meet Father or have any form of contact with
him. Child wanted to be adopted by S.M. The report also
indicated that Father had admitted to abusing
methamphetamines and marijuana as of a year ago, had multiple
incarcerations throughout, and had no visits with Child due
to those incarcerations. Although the trial court ordered
Father to pay $50 each month for Child's support, Father
remitted only a single $50 payment in 2013. Higgins
recommended that Father's parental rights be terminated.
August 3, 2017, the juvenile officer filed a Second Amended
Petition for Termination of Parental Rights seeking
termination of Father's parental rights on the grounds of
abuse or neglect, pursuant to section 211.447.5(2); failure
to rectify pursuant to section 211.447.5(3); and parental
unfitness, pursuant to section 211.447.5(6).
hearing was held on August 11, 2017. At the time of the
termination hearing, Child remained in an adoptive placement
with S.M., with whom he had been living since January 14,
testified that her recommendation was for the termination of
Father's parental rights to Child as it was in
Child's best interest, Father failed to provide anything
for Child's basic needs, and failed to provide for
education or emotional or mental care for Child. Father paid
no support for Child other than $50 in 2013, despite the fact
that Father had a job in prison for which he received $7.50
per month. When out of prison, Father remitted no support
payments for Child.
stated that on March 15, 2017, Father attended a court
hearing, whereupon he signed a written service agreement and
agreed to submit to random drug testing, maintain stable and
safe housing, maintain full-time employment and show proof of
income, and attend individual counseling. Father also agreed
to attend all court hearings and team meetings, as well as
cooperate with authority figures and service providers,
cooperate with monthly visits from the assigned caseworker,
and maintain consistent communication with the assigned
caseworker, reporting any changes in status, telephone number
to the written service agreement, Father submitted to a drug
test, which was negative. Higgins did one walk through of the
home where Father was living and observed some safety issues
that would need to be resolved. Father attended all team
meetings and court dates since his release from prison.
Father did maintain communication with Higgins. Higgins was
in the process of scheduling counseling for Father when the
Children's Division was relieved of reasonable efforts on
April 25, 2017.
stated that a continuation of a parent-child relationship
would deprive Child of an opportunity for a stable and
permanent home. Higgins reported that Child was currently in
a stable and permanent home with S.M., in large part due to
the fact that Child has lived with S.M. since he came into
care; and that it was in the best interest of Child for
Father's parental rights to be terminated.
testified he only saw Child once since Child's birth-at
that time, Father had been in jail, and Child was less than a
year old. Father admitted he had been in and out of prison a
number of times. His first release from prison was in October
2015, he was committed back to prison in March 2016, was
released at some point, and was again committed in the latter
part of 2016. Father was released on probation in February
being released in 2017, Father began having chest pains,
while doing side jobs for his uncle. He was hospitalized and
was told "90 percent of [his] heart was clogged."
Father stated he had "to go do a stress test, and they
think I've got to go have another . . . stent  put in,
because they think it's clogged again." Father had
not been released to work, and stated he currently could not
provide proper care and support for Child. Father stated that
he was to go "back in February to the heart doctor[, ] .
. . [and] if they release me, I don't have to go back in
for another stent. Then I can get back . . . to work and
provide for [Child]." Father depends on family and
friends to help with his own current reasonable needs.
time of trial, Father was on parole for failure to register
as a sex offender, with parole set to terminate on February
September 1, 2017, the trial court entered a judgment
terminating Father's parental rights with respect to
Child. The trial court found, in relevant part, that:
1. Pursuant to section 211.447.2(1), Child had been in foster
care for at least 30 months.
2. Pursuant to section 211.447.5(2)(d), Father, although
physically and financially able, repeatedly and continuously
failed to provide Child with adequate food, clothing,
shelter, education, and other care and control necessary for
Child's physical, mental and emotional health and
development. Father's inability to provide for Child was
partially due to his health condition, but the court found
that Father's voluntary acts causing his incarceration
was a larger factor in his inability to provide for
Child's physical, mental and emotional health and
development. From the evidence, the court believed Father
voluntarily chose to have no presence in Child's life
until this proceeding was instituted. Father had only one
brief contact with Child when Child was ...