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In re J.A.F.

Court of Appeals of Missouri, Western District, Third Division

March 5, 2019

IN THE INTEREST OF: J.A.F. AND J.J.A.F.
v.
J.A.F., Appellant. JUVENILE OFFICER, Respondent,

          Appeal from the Circuit Court of Jackson County, Missouri The Honorable J. Dale Youngs, Judge

          Before: Mark D. Pfeiffer, Presiding Judge, Lisa White Hardwick, Judge, Anthony Rex Gabbert, Judge

          ANTHONY REX GABBERT, JUDGE.

         J.F. ("Father") appeals the circuit court's judgment terminating his parental rights to two biological children, J.A.F. and J.J.A.F. Father contends the circuit court 1) erred in terminating parental rights pursuant to Section 211.447.5(2)[1] because there was no clear, cogent, and convincing evidence that he murdered the children's mother in the presence of the children, 2) erred in terminating parental rights pursuant to Section 211.447.5(2) because there was no clear, cogent, and convincing evidence that he repeatedly and continuously failed to provide the children with adequate support, 3) erred in terminating parental rights pursuant to Section 211.447.5(6) because there was no clear, cogent, and convincing evidence that he is unfit to be a party to the parent-child relationship, and 4) abused its discretion in finding termination of parental rights to be in the best interests of the children because the court's findings were not supported by substantial evidence. We affirm.

         Factual Background and Procedural Background

         On August 11, 2017, the Juvenile Officer filed a petition alleging J.A.F., age nine, and J.J.A.F., age seven, were without proper care, custody, and support and subject to the jurisdiction of the court pursuant to Section 211.031.1. The Juvenile Officer alleged Father neglected the children by being violent and aggressive and subjected the children to domestic violence towards their mother ("Mother"). Further, on August 2, 2017, while the children were present in Father's home, Father shot and killed Mother. Father was incarcerated on pending charges of second degree murder and armed criminal action. The Juvenile Officer alleged that Father had not addressed his exposure of the children to domestic violence or his violent and aggressive behaviors; therefore, the safety of the children could not be ensured with Father. Further, Father's actions placed the children at risk of further harm or neglect absent court intervention. The Juvenile Officer alleged that a maternal relative was physically caring for the children, but had no legal authority to enroll the children in school or provide for their medical needs.

         Simultaneously with the filing of the Petition, the Juvenile Officer applied to the court for an order of temporary protective custody pursuant to Rule 123.04. A temporary order was entered on August 11, 2017, placing the children in the custody of the Missouri Department of Social Services, Children's Division. A protective custody hearing was held August 15, 2017, at which time the children were ordered placed in the Children's Division's custody for appropriate placement. It was ordered the children have no contact with Father or paternal relatives. The Children's Division was ordered to provide the children individual therapy focusing on grief and trauma, and provide a psychological evaluation and parenting assessment for Father.

         On December 11, 2017, the court heard evidence on the Juvenile Officer's petition as well as recommendations regarding disposition. Father was represented by counsel. On December 20, 2017, the court entered its Judgment finding the petition's allegations proven by clear and convincing evidence and incorporating those allegations as findings of the court. The court further found:

The father has committed a severe act of emotional abuse toward the children and another child in the family under circumstances that indicate that the parent knew or should have known that such acts were being committed toward the children and another child in the family, including killing the mother with a firearm while the children were present at the residence where the shooting occurred. Therefore, the court finds that termination of parental rights and adoption is the appropriate permanency plan. This permanency plan is in the best interest of the children.

         Father did not appeal the court's Judgment.

         On January 29, 2018, the Juvenile Officer filed petitions to terminate Father's parental rights to J.A.F. and J.J.A.F. Trial was held May 7, 2018. Father was represented by counsel and appeared in person (in the custody of the Jackson County Department of Corrections). Evidence at trial, in the light most favorable to the court's Judgment, was as follows:

On August 2, 2017, Officer Michael Crooks and Officer Jonathan Hall were dispatched on a sound of shots call, which was upgraded to a shooting. Homicide Detective Bonita Cannon was also dispatched to the scene. Upon arriving at the scene, officers approached the residence from the west side and then moved to the north. They heard the north door slam closed as if someone had just run inside. Officers observed a female face down at the bottom of the stairs leading to the home's front porch, approximately fifteen feet from the north door of the home. She had no pulse. A Cobra 380 handgun, registered to Father, was lying near her body. She had a set of keys in her left hand, and a cell phone was lying a few feet from her body. Glass was broken out of the screen door. Police found a note written by Mother to Father. The note asked for the children back. It stated that the children needed to get ready for school, meet their teachers, and get school supplies. It also stated that Mother knew the children missed her.

         Officers called for individuals within the home to exit with hands up; Father exited the home and was handcuffed and taken into custody. Officers testified that Father showed no signs of distress. When asked, Father advised that there were children in the home and a gun (9 mm handgun registered to Father) in the kitchen. Once inside the home, officers found J.A.F., J.J.A.F., and two other children locked in a bedroom. (At least one of these children was Father's from a different mother.) The oldest child opened the door holding a small baseball bat. The children were scared and distraught. Officer Crooks remained with them until family arrived.

         Video surveillance equipment was found unplugged in the master bedroom closet. Retrieved video footage from the time period of the shooting showed Father walking, and just before the video ended it showed Mother standing outside Father's door with her cell phone in one hand and keys in the other. Father had a firearm in his hand. The video went black moments before the officers' call for service was received. Ammunition for both the Cobra 380 handgun and 9 mm handgun was found in a plastic plant mounted to the wall in the master bedroom, and also in a bedside table. Spent shell casings from a 9 mm gun were found near the door and on the porch.

         A.R. (Mother's sister/children's maternal aunt) was on the phone with Mother while Mother was at Father's residence. A.R. had known Father since 2005 or 2006 when Mother and Father started dating. After J.A.F. and J.J.A.F. were born, A.R. saw the children nearly every weekend. The boys would often spend the night at A.R.'s home. A.R. was aware of "domestic issues" between Mother and Father. A.R. testified that Father threatened Mother "millions of times" and would say things and send text messages such as, "this is your time to die today." A.R. testified that Father had pulled Mother's hair in the past, and when the couple was in the process of separating, Father choked Mother. In 2015, when the couple first separated, Father took J.A.F. and J.J.A.F. for approximately three weeks allowing no contact with Mother.

         In May of 2017, Father took the children at the close of the school year and allowed no contact with Mother. During that time, Father threatened Mother via text messages. A.R. testified that the couple's divorce decree awarded joint custody, with Father receiving parenting time "every two weeks or so." Mother went to the police for assistance retrieving the children, but was told they could do nothing to help her. A.R. testified that at some point prior to August 2, 2017, Mother "filed for full custody."

         Mother went to Father's home on August 2, 2017, to get the children. A.R. spoke to Mother at approximately 2:30 that afternoon and talked for approximately twenty minutes. A.R. testified that Mother was at Father's home "trying to get the kids." A.R. heard Mother say to Father, "Are you going to put a gun out on me?" A.R. asked Mother, "Is that [Father] and do you want me to call the police?" Mother said "no" and hung up. A.R. called Mother back. Mother was "distraught, just trying to get her kids back." The conversation lasted about thirty seconds. A.R. went to Father's home later that day and saw police crime tape; she went to the police station that night. J.A.F. and J.J.A.F. were placed in A.R.'s care and remained in her care at the time of the termination hearing.

         Ransom Ellis, a Forensic Pathology Fellow at the Jackson County Medical Examiner's Office, performed an autopsy on Mother on August 3, 2017. Ellis found seven gunshot entry wounds to Mother's body, and five exit wounds. Ellis determined the shots entered, 1) Mother's left upper back, 2) Mother's right upper back, 3) the "right upper lateral" of Mother's back 4) the back of Mother's right upper arm near the shoulder, 5) the back of Mother's right upper arm just below the other shot near the shoulder, 6) the front of Mother's right wrist at the base of the right thumb, and 7) Mother's right hand between the second and third fingers. The gun was at least three feet from Mother when she was shot. Mother had additional trivial contusions and abrasions consistent with falling face down onto a hard surface or gravel. A toxicology report was performed on Mother. Her blood was negative for illicit substances and alcohol, and was positive for caffeine and Benadryl. Ellis determined the cause of Mother's death to be multiple gunshot wounds, and the manner of Mother's death homicide. Suicide was ruled out due to the number of gunshot wounds, Mother having been shot in the back, and no close range evidence of soot, stippling, or muzzle imprint.

         Children's Division investigator Tara Parrish spoke with J.A.F. and J.J.A.F. at the police station the day of the shooting, and also the following day at A.R.'s home. Both of the children also participated in forensic interviews at the Child Protection Center on August 4, 2017. The children reported that, the day Mother was killed, they heard Mother knocking on the door and calling their names. They reported it had been several months since they had seen her. J.A.F. said the last time he saw Mother was field day at school; he also said Father would not let him see Mother. When they first heard Mother knocking on the door, Father was not home; he had left to deliver some brownies. J.A.F. and J.J.A.F. were in the home with two other children. When Mother was knocking outside, one of the other children telephoned her own mother. The two other children then told J.A.F. and J.J.A.F. to go into a bedroom.

         Upon returning home, Father looked in on the children in the bedroom. J.A.F. reported hearing Father and Mother yelling and screaming. He heard a whipping sound, as if his father was whipping something. Law enforcement arrived shortly thereafter. He stated that Father had a gun at the home when they were there, and would carry it with him in the car when he left. J.A.F. reported that Father and Mother previously fought a lot. Father would use his hands to fight with Mother and at one point chased Mother around the house with a knife trying to stab her. Father would discipline J.A.F. with whippings with the metal side of a belt and would hit him in the chest with a closed fist.

         J.J.A.F. gave a similar account. He reported that on the day of August 2, 2017, after he heard yelling and screaming between his parents, he heard banging noises. He also heard his mother scream. He stated that his parents previously fought a lot, and that Father would hit Mother, pull her hair, and choke her. He once observed Father point a gun at Mother's head. Like J.A.F., J.J.A.F. reported that father kept a gun within the home and upon leaving would put it on his lap while driving in the car. The children denied ever seeing Mother with a gun.

         Both children started therapy with Claire Jones in October 2017. Both children were diagnosed with Post Traumatic Stress Disorder (PTSD). Jones testified that J.A.F. had been able to tolerate only minimal discussion regarding the incident involving Mother. Jones testified J.A.F. "point blank" said, "My father killed my mother." His PTSD diagnosis stems from "exposure to trauma, maladaptive coping and avoidance to a lot of different things that surround the event, thinks that he is to blame and anger, irritability, extreme mood dysregulation." J.J.A.F. coped ...


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