Court of Appeals of Missouri, Western District, Third Division
IN THE INTEREST OF: J.A.F. AND J.J.A.F.
J.A.F., Appellant. JUVENILE OFFICER, Respondent,
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.
("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) 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.
Background and Procedural Background
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.
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.
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.
did not appeal the court's Judgment.
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.
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.
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
(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.
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."
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
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
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.
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.
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.
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 ...