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In re R.R.S.

Court of Appeals of Missouri, Southern District, First Division

April 24, 2019

In the Interest of R.R.S., S.C.S., J.B.S., R.H.S., and C.M.S.
v.
DENT COUNTY JUVENILE OFFICE, Respondent. D.A.W., Appellant,

          APPEAL FROM THE CIRCUIT COURT OF DENT COUNTY Honorable Benjamin Thompson

          GARY W. LYNCH, J.

         In these consolidated appeals, D.A.W. ("Mother") appeals the trial court's August 8, 2018 judgment ("TPR judgment") terminating her parental rights to five of her children: R.R.S., S.C.S., J.B.S., R.H.S., and C.M.S. (collectively "the children").[1] After giving a procedural background, we will address and discuss Mother's three points relied on asserted in her brief in the order she presented them. Determining that Mother has failed to demonstrate the TPR judgment is incorrect, we affirm.

         Procedural Background

         The Children's Division of the Missouri Department of Social Services ("Children's Division") initiated these termination of parental rights ("TPR") actions by petitions filed during September 2017. Before trial, the children's individual TPR cases were consolidated by the trial court "for the purpose of hearing[.]" A consolidated trial was held on those petitions on May 9, 2018. No party made a Rule 73.01(c) request for the trial court to make any findings of fact.[2]During that trial, eight witnesses provided live in-court testimony, and seven documentary exhibits were admitted into evidence.

         In addition to the testimony and exhibits, the Children's Division requested that the trial court take judicial notice of "the underlying juvenile files" in each child's then-pending child abuse and neglect ("CAN") case. The five CAN cases were initiated by petitions filed by the Juvenile Officer on January 22, 2014.[3] Mother objected on the ground that "those files contain a tremendous number of records that are hearsay" and stated to the trial court that "[t]he matters in those five cases below should not be considered." The trial court ruled that

at this point I will take judicial notice of this Court's orders contained within those juvenile matters, but I will not take judicial notice and consider as evidence the entire file in each of those proceedings. But I will take judicial [sic] of the orders that are therein. If at a later time you wish to make some further request with regards to notice of those, I'll address those individually.

         The trial court also took judicial notice of the investigation and social summary filed by the Children's Division in the TPR cases on March 5, 2018, to "consider that as evidence for the Court's best interest determination." The trial court admitted no other evidence during the trial.

         After the taking of evidence concluded and all parties had rested, the trial court called for closing arguments. Mother immediately inquired of the trial court, "could we do closing arguments in writing?" The trial court responded, "I will take closing arguments orally at this time, and if you wish to have an opportunity to submit some writing to the Court before I make a decision and judgment, I will give you that opportunity." Mother chose to forego any oral closing argument, as invited by the trial court. The trial court thereafter gave Mother until May 21, 2018, to file "any post-trial argument or memorandum" and gave the other parties three days thereafter within which to file a reply thereto, if any, so that the trial court would "be able to make a decision by May 25th." On May 21, Mother filed a document she titled and internally referred to as her "Closing Argument." The first paragraph of that document states,

In addition to the Court taking judicial notice of the Findings and Order of the Court, [Mother] would agree to the request of the attorney for [Children's Division] to take judicial notice of the entire file, but only to the extent of the Court Reports filed by [Children's Division] through December 31, 2015. [Mother] believes there is substantive information in these Court Reports to which this Court should be privy and be able to take judicial notice.

         Mother, however, made no request in her "Closing Argument" or by separate motion for the trial court to reopen the evidence for the purpose of considering admission of the referenced "Court Reports" into evidence. No party filed a reply to Mother's "Closing Argument." Nothing in the record before us supports that the trial court ever admitted any "Court Reports" from the children's CAN cases into evidence. Nor has Mother directed us to anything in the record supporting that the trial court considered or relied upon any such "Court Reports" in entering the TPR judgment.

         On August 8, 2018, the trial court entered the TPR judgment terminating Mother's parental rights to the children on three grounds: "the children have been abused or neglected[, ]" see section 211.447.5(2) ("abuse or neglect ground");

the children have been under the jurisdiction of the juvenile court for a period exceeding one year and the Court finds that the conditions which led to the assumption of jurisdiction still persist and that there is little likelihood that those conditions will be remedied at an early date so that the children can be returned to the parent in the near future[, ]

see section 211.447.5(3) ("failure to rectify ground"); and

[Mother] is unfit to be a party to the parent and child relationship because of a consistent pattern of committing a specific abuse including, but not limited to, specific conditions directly relating to the parent and child relationship which renders [Mother] unable to care appropriately for the ongoing physical, mental, or emotional needs of the minor child for the reasonably foreseeable future[, ]

see section 211.447.5(6)(a) ("parental unfitness ground").[4] After finding the existence of the abuse and neglect ground, the trial court made statutorily required findings of fact related to each of the four statutory factors listed in section 211.447.5(2)(a)-(d) ("abuse or neglect statutory factors"). Similarly, after finding the existence of the failure to rectify ground, the trial court made statutorily required findings of fact related to each of the four statutory factors listed in section 211.447.5(3)(a)-(d) ("failure to rectify statutory factors"). The trial court also found that termination of Mother's parental rights was in the best interests of the children. Related to that finding, the trial court made statutorily required findings of fact for each of the seven statutory factors listed in section 211.447.7(1)-(7) ("best-interest statutory factors").

         Discussion

         Point 1 - Appeal of Order Denying Visitation is not Timely

         Mother's first point relied on contends:

The trial Court erred in terminating [Mother's] rights of visitation and contact with her children on December 8, 2015 because such termination constituted an abuse of discretion resulting in a de facto termination of parental rights of Appellant in violation of the Appellant's due process rights under Article I, Section 10 of the Missouri Constitution.

         Almost two years before the TPR actions were initiated in the trial court by the Children's Division, the trial court in the children's CAN cases entered an order on December 8, 2015, that "[a]ll visitation and contact by [Mother] shall cease." No notice of appeal from that order or any other matter appears in the CAN case records before us in these appeals. The only notices of appeal before us now are those Mother filed in the TPR actions on September 14, 2018. The initial threshold issue on this point, therefore, is whether the notices of appeal in these TPR actions are timely filed for an appeal of the December 8, 2015 order in the CAN actions.[5]We determine they are not timely filed for such an appeal.

         Under the provisions of Section 211.181, a "Finding of Jurisdiction, Judgment and Order of Disposition" was entered by the trial court in the CAN cases on March 5, 2014. That order directed that Mother's visitation with the children "shall be arranged and supervised by the Children's Division or its designee." Thereafter, as required by section 211.032.4, the trial court in the CAN cases held periodic review hearings. Following a December 8, 2015 review hearing, the trial court in the CAN cases entered on that date an "Order of Court Following Permanency Hearing" that, among other things, terminated Mother's visitation and contact with the children. This modification of Mother's visitation as allowed in the March 5, 2014 Order of Disposition was made under section 211.251.1, which provides, in relevant part, "A decree of the juvenile court made under the provisions of section 211.181 may be modified at any time on the court's own motion."

         Section 211.261.1 provides, in pertinent part, that "[a]n appeal shall be allowed to a parent from any final judgment, order or decree made under the provisions of this chapter which adversely affects him."[6] "[T]he court's continuing jurisdiction over the child does not defeat the right to appeal." In re L.E.C., 94 S.W.3d 420, 423 (Mo.App. 2003). "There is no connection between the issues in the denial of visitation and the petition for termination of parental rights sufficient to require that they be combined in a single appeal." In Interest of N.D., 857 S.W.2d 835, 842 (Mo.App. 1993). As discussed in the preceding paragraph, the December 8, 2015 order was entered in the CAN cases under the provisions of chapter 211 and more particularly under section 211.251.1. That order's denial of Mother's parental visitation and contact with the children adversely affected her. See id. (denial of a parent's petition for custody or visitation adversely affects the parent). Section 211.261.1, therefore, afforded Mother a statutory right to appeal the December 8, 2015 order.

         Section 211.261.1 further provides, however, that "Notice of appeal shall be filed within thirty days after the final judgment, order or decree has been entered[.]" Section 211.261.1. That time period is extended by ten days by the application of Rule 81.04 ("notice of appeal shall be filed not later than ten days after the judgment, decree, or order appealed from becomes final") and Rule 81.05(a) ("A judgment becomes final at the expiration of thirty days after its entry if no timely authorized after-trial motion is filed."). In Interest of D.J.B., 704 S.W.2d 217, 218 (Mo. banc 1986) (Rules 81.04 and 81.05(a) apply and supersede any part of section 211.261 inconsistent with those rules). The order Mother challenges in this point was entered by the trial court in the CAN cases on December 8, 2015. No timely authorized after-trial motion was filed. Mother's notices of appeal in the TPR cases currently before us were filed on September 14, 2018, which is more than forty days after December 8, 2015. The TPR notices of appeal, therefore, are not timely filed under section 211.261.1 and Rule 81.04 for an appeal of the December 8, 2015 order entered in the CAN cases. In the absence of a timely filed notice of appeal, we have no legal authority to entertain an appeal. Lenz v. Lenz, 412 S.W.3d 487, 489 (Mo.App. 2013); In Interest of P. J. M., 536 S.W.2d 519 (Mo.App. 1976); see Rule 81.04(a) ("No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment, decree, or order appealed from becomes final."). Mother's first point is denied.

         Points 2 and 3 - Neither Point Demonstrates the TPR ...


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