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In re R.J.M.

Court of Appeals of Missouri, Southern District, Second Division

March 26, 2019



          WILLIAM W. FRANCIS, JR., P.J.

         R.S.M. ("Father") appeals the amended judgment of the Juvenile Division of the Circuit Court of Taney County (the "trial court"), terminating his parental rights to R.J.M. Jr. ("Child").[1]Father's six points on appeal are in substantial violation of Rule 84.04, [2] and preserve nothing for review. On that basis, Father's appeal is dismissed.[3]

         Factual and Procedural Background

         On January 29, 2015, Child (who was approximately 6 months old) came into care of the Juvenile Division due to unsanitary living conditions in Father's residence. The house Child was living in was filled with feces, ants, roaches, trash, and rotting food. The house also had no utilities, broken windows, and leaking fluids from a refrigerator. Written service agreements directed that Father was to provide Child with a safe, healthy, and clean living environment, along with utilities. The original goal for Father was reunification with Child, which was later changed to adoption. On February 20, 2017, the Children's Division of the Missouri Department of Social Services ("Children's Division") filed a petition to terminate Father's parental rights.[4]

         On April 18, 2018, a termination hearing was held. Father did not testify. The evidence adduced at hearing was that Father was provided extensive services for more than three years, including psychological assessments, counseling, parent aides, supervised visitation, and housekeeping assistance. Father still had not rectified the issues that brought Child into care, and there was no evidence that Father would do so in the foreseeable future.

         Father was found to have learning difficulties and an IQ in the borderline range. He was diagnosed with depressive disorder and permanent borderline intellectual functioning. Father could not be certified as meeting minimum parenting standards, based partly on Father's continued denial there were problems and his minimization of the issues that had brought Child into care.

         A representative of the Cherokee Nation testified that Children's Division had engaged in "active efforts" to reunify Child with Father, but those efforts had failed; that if Child was returned to Father, "it would likely result in serious emotional or psychological damage to the child"; and he recommended that Father's parental rights be terminated as it was in the best interest of Child.

         The trial court terminated Father's parental rights, pursuant to section 211.447.5(2) (abuse or neglect), and section 211.447.5(3) (failure to rectify).[5] The trial court also found that it was in the best interest of Child to terminate Father's parental rights. Pursuant to the Indian Child Welfare Act, the trial court found that continued custody of Child by Father would likely result in serious emotional or physical damage to Child.

         Father filed a "Motion for New Trial or in the Alternative Amended Findings," which was denied. This appeal followed.

         Rule 84.04 and Briefing Deficiencies

         Father's brief is not in substantial compliance with Rule 84.04, and runs afoul of controlling principles of appellate review. We note the most grievous of Father's briefing violations.[6]

         Statement of Facts

         Rule 84.04(c) requires that an appellant present the reviewing court with "a fair and concise statement of the facts relevant to the questions presented for determination without argument." This requirement reflects the controlling principle of review that "[a]n appellant may not simply recount his or her version of the events, but is required to provide a statement of the evidence in the light most favorable to the judgment."[7] Rather, "[t]he function of the appellant's brief is to explain to the court why, despite the evidence seemingly favorable to the respondent, the law requires that appellant must prevail." Hoer v. Small, 1 S.W.3d 569, 571 (Mo.App. E.D. 1999).

         Father's statement of facts (presaging 6 points and twenty-five pages of evidence-heavy argument) is perhaps "concise" at three pages in length. However, "the statement of facts are to include (at least) all those facts utilized in the argument section of a brief[]"[8]-Father's three pages of "facts" do not meet that requirement. Even within Father's "concise" presentation, argument masquerades as fact (this is prohibited).[9] Our courts have observed that this manner of failure is "often viewed" as an admission that if all (and only) the relevant facts were before the reviewing court, "the appellant would surely lose."[10]

         Points ...

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