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In re J.A.L.

Court of Appeals of Missouri, Southern District, Second Division

April 20, 2018

In the Interest of: J.A.L., a Minor,
PHELPS COUNTY JUVENILE OFFICE, Respondent. R.A.L., Natural Father, Appellant,

          APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY Honorable Mark D. Calvert, Associate Circuit Judge

          WILLIAM W. FRANCIS, JR., J.

         R.A.L. ("Father") appeals the judgment terminating his parental rights to his son, J.A.L. ("Child").[1] 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").

         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). Viewed in this context, the following facts are pertinent to the current appeal.

         Child 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).[2] On December 10, 2007, Father was sentenced to "five years . . . on each Count" in the Department of Corrections ("DOC").

         On 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.

         On 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.

         On February 4, 2015, Father was notified by Child's caseworker, Leslie Higgins ("Higgins"), that Child was taken into custody by the Children's Division.

         On 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.

         Between August 10, 2015 and September 15, 2016, Father made no contact with, or inquiries to Higgins as to Child.

         Father 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."

         At a permanency review hearing on March 16, 2016, the primary permanency goal for Child was changed to termination of parental rights and adoption.

         Father 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 DOC.

         On May 19, 2016, a petition seeking termination of the parental rights of both Father and Mother was filed.

         Father 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.

         On 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.[3]

         The 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.

         On July 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.

         On July 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.

         On 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).

         A hearing was held on August 11, 2017.[4] 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, 2015.

         Higgins 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.

         Higgins 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 or address.

         Pursuant 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.

         Higgins 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.

         Father 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 2017.

         After 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.

         At the time of trial, Father was on parole for failure to register as a sex offender, with parole set to terminate on February 6, 2018.

         On 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 ...

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