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In re D.A.B.

Court of Appeals of Missouri, Eastern District, First Division

February 26, 2019

IN THE INTEREST OF: D.A.B. AND B.M.S.

          Appeals from the Circuit Court of Pike County Honorable David Ash

          OPINION

          Angela T. Quigless, J.

         In this consolidated appeal, B.S. ("Father") and R.B. ("Mother") (collectively, "Appellants") separately appeal from the judgment of the circuit court terminating their parental rights to D.A.B. and B.M.S. (the "Children").

         Father raises one point on appeal, arguing the trial court erred in terminating his parental rights because the Children's Division of the Missouri Department of Social Services ("Children's Division") repeatedly failed to provide interpretive services he was entitled to as a deaf person under Section 476.753 RSMo (Cum. Supp. 2007) and Nondiscrimination on the Basis of Disability in State and Local Government Services, 28 C.F.R. § 35.160, a federal regulation promulgated under Title II of the Americans With Disabilities Act (the "ADA"), 42 U.S.C. § 12132 (1990). See Nondiscrimination on the Basis of Disability in State and Local Government Services, 75 Fed. Reg. 56, 164 (Sept. 15, 2010).

         Mother raises four points on appeal, arguing the court erred in terminating her parental rights because: (1) the court lacked jurisdiction, in that the Children's Division failed to serve the foster parents and failed to properly serve any of the parties, as required by Section 211.453 RSMo (2000); (2) the Children's Division failed to place the Children in her custody as the non-offending parent, as required by Section 211.037 RSMo (Cum. Supp. 2007); (3) the Children's Division failed to make reasonable efforts to eliminate the need for removal of the Children from their parents, as required by Section 211.183 RSMo (Non-Cum. Supp. 2014) and Section 211.565 RSMo (Cum. Supp. 2012); and (4) the Children's Division failed to provide basic necessary services for Mother, Father, and the Children, as required by Section 211.455.3 RSMo (Non-Cum. Supp. 2014), including sign language interpreters, sign language training for the Children, and assigning a local caseworker to interact with Mother while she was living in Springfield, Missouri.

         We dismiss Mother's claims in Points I, II, and III for failure to comply with Rule 84.04, and affirm the judgment terminating Appellants' parental rights.

         Factual and Procedural Background[1]

         Father and Mother have both been deaf since childhood and graduated from the Missouri School for the Deaf. Although Father and Mother generally communicate through sign language interpreters, they can both read, write, and understand English. Mother is also able to read lips. The Children, who are hearing, speak English and also have a limited ability to use sign language.

         On July 16, 2014, the Children's Division assumed jurisdiction over the Children following a hotline call alleging neglect, lack of housing, lack of food, lack of shelter, and also physical abuse. The Children were staying with Father at the time. Mother was out of the area and had left the Children with Father.

         Upon taking the Children into custody, the Children's Division did not have Mother's current contact information and there was no other appropriate placement identified. When Mother learned that the Children had been taken into custody, she contacted the Children's Division. However, the Children's Division did not place the Children in Mother's custody because Mother's housing situation was unstable and inappropriate for the Children.

         The juvenile court entered an initial order placing the Children in protective custody on July 17, 2014. Following a hearing on July 21, 2014, the juvenile court ordered that the Children "remain in protective custody pending further proceedings and in the temporary legal custody of the Children's Division for suitable physical placement." The Children were then immediately placed into foster care and have remained with the same foster family since June of 2015.

         Shortly after the Children were taken into custody, the Children's Division considered placement with a family member, but was unable to find an appropriate place. Mother's sister was considered after she contacted the Children's Division. However, the Children were never placed with the sister because, as the caseworker testified, "[t]here was no follow-through on [the sister]'s part of getting us information, us being able to do a walk-through of her home, us doing background checks."

         On August 18, 2014, Father entered into a Written Service Agreement ("Service Agreement") with the Children's Division in which he agreed to numerous tasks regarding five domains to secure reunification with the Children. Specifically, Father agreed to the following:

- obtaining and maintaining stable housing to provide a safe and sanitary environment for the Children;
- providing an environment for the Children that is free of violence, illegal activities and sexually based activities or materials;
- developing and maintaining a healthy relationship with the Children consisting of demonstrating appropriate parenting skills, bonding, and discipline in order to allow him to develop a health, appropriate relationship with the Children;
- taking necessary steps to address any of his own emotional, physical, mental health needs in order to provide healthy parenting for the Children; and
- cooperating with efforts made by the Children's Division and Family Court to assist in the reunification process and have contact with the Children.

         For each domain, Father's Service Agreement identified specific tasks he agreed to perform in furtherance of each stated goal.

         After reading the Service Agreement, Father signed it and initialed statements indicating he was involved in the development of the Service Agreement, agreed with the conditions set forth therein, and was notified of and understood his rights with regard to services provided by the Children's Division. There was no evidence at trial that Father did not understand what he read.

         The Children's Division provided Father with numerous services during the two and a half years the Children were in custody, including: referrals to various agencies to assist Father with his financial and housing needs; parenting classes; family counseling; a psychiatric evaluation, prescriptions for medications to treat his episodic mood disorder, intermittent explosive disorder and ADHD; and referrals for therapy.

         Despite these services and assistance, Father failed to make significant progress on any of the goals set out in the Service Agreement. Father constantly changed residences without informing the Children's Division, occasionally had no place to live, and never obtained a residence with an appropriate place for the Children to sleep. At the time of trial, the conditions of neglect persisted. Father was living in a trailer with no working bathroom, unsanitary conditions, and no place for the Children to sleep. Although Father eventually completed parenting classes, he was unable to demonstrate what he learned or use the skills to develop a healthy relationship with the Children. Father consistently visited the Children every week, however he spent the time using his phone or tablet instead of interacting with the Children. Generally, Father failed to pay attention to the Children's basic needs, causing a caseworker to intervene during supervised visits on several occasions. During the visits, there "[did] not appear to be a significant emotional tie from the [C]hildren to the parents." Additionally, Father was unable to take care of his financial and housing needs. Father failed to take steps to address his psychiatric problems, at one point took himself off his medications without consulting a physician, and failed to follow through with appointments for therapy or counseling sessions.

         The Children's Division also developed a Service Agreement for Mother, which contained the same domains and goals as Father's Service Agreement. Mother initially refused to sign her Service Agreement, stating she wanted to speak with an attorney. Mother eventually signed the initial Service Agreement on June 31, 2015, but refused to sign several subsequent Service Agreements. The Children's Division provided Mother with numerous services and substantial assistance, however Mother would constantly move or leave town without notifying the Children's Division for several weeks or months at a time. The assistance and services provided to Mother included: referrals to various agencies to assist Mother with her financial and housing needs; parenting classes; family counseling; domestic violence classes; a psychiatric evaluation; and referrals for therapy to treat her episodic mood disorder, adjustment disorder, and depression.

         Like Father, Mother also failed to make significant progress on any of the goals in her Service Agreement. She relocated frequently, sometimes staying out of Missouri for several weeks or months at a time. Her housing remained inappropriate and had no room for the Children. Mother regularly failed to notify the Children's Division of her change of address, and failed to communicate with the Children's Division at all for months at a time. Unlike Father, Mother was not consistent in visiting the Children. When Mother did attend visitations, she largely ignored D.A.B. and B.M.S. Although Mother acknowledged she had issues with domestic violence related to Father's violent temper and had a protective order against Father, she did not follow through with resources provided by the Children's Division to assist with this issue. Mother completed a parenting class, but failed to demonstrate any of the parenting skills she learned. Mother also disregarded referrals for counseling and family therapy. Mother did not complete any of the tasks to demonstrate an ability to protect the Children.

         For the first year and a half of the case, the Children's Division did not provide Appellants with sign language interpreters. However, Appellants admitted family members who could sign served as interpreters or Appellants would use written notes to communicate with the Children's Division.

         Prior to January 2016, neither Father nor Mother complained to the Children's Division that they could not understand what was required of them or requested that the Children's Division provide sign language interpreters.[2] The Children's Division did not believe communication was a problem at that point because Father "seemed okay with what we were doing." However, in January of 2016, Father requested an interpreter, and the Children's Division provided a qualified[3] sign language interpreter for every meeting and home visit from that point on. The Children's Division did not provide interpreters for any of the visits with the Children as the Children knew some sign language and were able to communicate with Father and Mother. The Children's Division did, however, provide the Children with limited sign language training to maintain and develop their sign language abilities and facilitate communication with Father and Mother. Throughout the pendency of these proceedings, an interpreter, whether qualified or not, was present for every family support team meeting, including the meetings where Appellants were presented with their Service Agreements.

         On March 7, 2017, the Children's Division filed a report recommending that the parental rights of Mother and Father be terminated due to the "lack of progress on their Written Service Agreement." The trial court held a bench trial, during which evidence supporting the aforementioned facts was presented. At trial, Appellants argued, inter alia, termination was not warranted because the Children's Division failed to provide sign language interpreters, as required by both Missouri and federal law. More specifically, Appellants argued sign language interpreters were not provided during numerous meetings with the Children's Division prior to January 2016, and that interpreters were not provided during visits with the Children.

         After hearing all of the evidence, the trial court issued its judgment concluding that clear, cogent, and convincing evidence supported the termination of both Father's and Mother's parental rights pursuant to Section 211.447.5(3) RSMo (2016), and that termination was in the best interest of the Children. Specifically, the trial court found the harmful conditions that led to the Children coming into custody of the Children's Division "have continued to exist for both parents . . . . They had not been remedied by the time of trial and there was no prospect for any real change in the conditions of either parent." In reaching this conclusion, the trial court expressly rejected Appellants' assertion that the lack of interpreters was a factor in Appellants' failures to comply with the terms of their Service Agreements or rectify the conditions of neglect.

         Appellants filed a motion for a new trial reasserting their argument that termination was not warranted due to the Children's Division's failure to provide sign language interpreters, as required by Missouri and federal law, citing Section 476.753 and 28 ...


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