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In re A.R.B.

Court of Appeals of Missouri, Western District, First Division

September 3, 2019

IN THE INTEREST OF: A.R.B.; JUVENILE OFFICER, Respondent,
v.
T.B., Appellant. E.R. and M.R., Respondents,

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

          Before Cynthia L. Martin, Presiding Judge, Victor C. Howard, Judge and Alok Ahuja, Judge

          Cynthia L. Martin, Judge

         T.B. ("Mother") appeals from the trial court's judgment terminating her parental rights to A.R.B. ("Child"). Mother argues on appeal that the trial court's judgment constituted error in seven respects: (1) the commissioner who presided over the termination of parental rights trial and made findings and recommendations to the trial court was obligated to recuse himself pursuant to Rule 121.01;[1] (2) Mother was never served with a summons for the petition filed on July 16, 2015; (3) Mother was not properly served with the first amended petition filed on August 19, 2016, because the officer making the return did not comply with Rule 54.20(b)(1); (4) in the underlying juvenile proceedings, Mother was not given notice of her right to counsel, Mother was not provided an application for appointment of an attorney, and Mother went unrepresented for over two and a half years; (5) Mother was not given notice of her right to counsel and was not appointed counsel for nearly six months after the petition to terminate parental rights was filed, and once Mother was appointed counsel, she was denied effective assistance of counsel; (6) the trial court improperly considered Mother's "mental condition" as a basis for terminating parental rights; and (7) the guardian ad litem failed to discharge her duties to act diligently in the best interests of the child and to undertake a diligent independent investigation. We affirm the trial court's judgment, but remand this matter to the trial court for consideration of Mother's pending motion for attorney's fees in excess of the regulatory maximum.

         Factual and Procedural History[2]

         Mother is the biological mother of the Child, born on April 29, 2011. On June 27, 2013, the Juvenile Officer of Jackson County filed a petition ("abuse and neglect petition") in case number 1316-JU000703 ("underlying juvenile matter") alleging that the Child was without the proper care, custody, or support necessary for his well-being because Mother exhibited a pattern of neglect toward the Child. In particular, the abuse and neglect petition alleged that, in or around January 2013, Mother left the Child in the care of a friend without providing the friend authority to seek medical treatment for the Child despite knowing that the Child required special medical treatment due to a heart condition. The abuse and neglect petition further alleged that Mother had not provided any emotional or financial support for the Child since January 2013 and had failed to have any contact with the Child since April 2013. The abuse and neglect petition noted Mother's criminal record and the fact that Mother had two other children, one of whom was in the custody of E.R. as a result of a paternity action, and one of whom was in the custody of E.R. as a result of a guardianship action.[3] At the time the abuse and neglect petition in the underlying juvenile matter was filed, William R. Jackson was the Juvenile Officer of Jackson County ("Juvenile Officer"). An attorney for the Juvenile Officer signed the petition.

         The same day the abuse and neglect petition was filed, the trial court entered an order for temporary protective custody, placing the Child in the temporary protective custody and in the temporary legal custody of the Children's Division. The trial court held a protective custody hearing on July 2, 2013. Following the hearing, the trial court ordered that the Child remain in protective custody and in the temporary legal custody of the Children's Division, and ordered that the Children's Division investigate E.R. as a possible kinship placement for the Child. The trial court further ordered that E.R. have visitation with the Child.

         Mother was served with a summons for the abuse and neglect petition on July 11, 2013, while she was incarcerated in the Henry County jail. The first hearing on the abuse and neglect petition in the underlying juvenile matter was held on July 24, 2013. Mother did not appear. The trial court set an adjudication hearing in the underlying juvenile matter for August 20, 2013, and reiterated its order that E.R. have visitation with the Child.

         The adjudication hearing was held as scheduled on August 20, 2013. Mother did not appear, as she was still incarcerated in the Henry County jail. Commissioner Geoffrey E. Allen ("Commissioner Allen") presided over the adjudication hearing, during which evidence was received. Commissioner Allen entered findings and recommendations sustaining the allegations in the abuse and neglect petition and finding that the Child was in need of care and treatment. The findings and recommendations ordered the Child to be committed to the custody of the Children's Division for placement. The findings and recommendations further ordered Mother to submit to a psychological evaluation; that Mother complete a substance abuse assessment; that the Children Division place the Child with E.R. if justified by a home study; that Mother have closely supervised visits with the Child if the guardian ad litem agrees; that E.R. have supervised and unsupervised visits with the Child; and that the Children's Division provide a parent aid. The trial court adopted the findings and recommendations on August 22, 2013.

         Following a case review hearing in December 2013, Commissioner Allen ordered that the Children's Division place the Child in the home of E.R. and M.R. (collectively "Prospective Adoptive Parents") in Sturgeon, Missouri. The trial court adopted these findings and recommendations on December 20, 2013. The Child has remained in the Prospective Adoptive Parents' home since that time.

         On April 7, 2014, another case review hearing took place. Commissioner Allen entered findings and recommendations that ordered the Child to remain in the custody of the Children's Division and in the placement of the home of the Prospective Adoptive Parents, and that ordered adoption planning to commence. The April 7, 2014 findings and recommendations scheduled a permanency hearing for July 29, 2014. The trial court adopted these findings and recommendations on April 10, 2014.

         The permanency hearing was held on July 29, 2014, and was presided over by Commissioner Allen. The findings and recommendations continued the court's previous orders and stated that the goal for the Child should be adoption. The trial court adopted these findings and recommendations on August 1, 2014.

         Additional case review hearings were held in November 2014, April 2015, and June 2015, and in each of these instances, the trial court adopted Commissioner Allen's findings and recommendations to continue all previous orders, including the order that adoption remained the goal. The June 2015 case review hearing was the final hearing over which Commissioner Allen presided in the underlying juvenile matter.

         On July 16, 2015, the Prospective Adoptive Parents filed a petition to adopt the Child ("adoption petition") in case number 1516-FC06455 ("termination of parental rights action"). The adoption petition alleged that Mother was the Child's natural mother and that the Child's natural father was unknown. The adoption petition further alleged that Mother "willfully abandoned, and willfully, substantially, and continuously neglected to provide the [C]hild with the necessary care and protection for a period of at least six months immediately prior to the filing of the Petition for Adoption" so that "her consent to adoption is not required." The adoption petition made the same allegations about the Child's unknown natural father. The Prospective Adoptive Parents served the Child's unknown natural father by publication but otherwise took no other action in the termination of parental rights action.

         While the termination of parental rights action was initially assigned to Commissioner Allen, Commissioner William R. Jackson ("Commissioner Jackson"), former Juvenile Officer of Jackson County, was appointed to the case on September 1, 2015. Commissioner Jackson also replaced Commissioner Allen in the underlying juvenile matter. On October 27, 2015, at a case review hearing for the underlying juvenile matter, Commissioner Jackson asked the parties present (the attorney for the Juvenile Officer and the guardian ad litem) whether either party wanted Commissioner Jackson to recuse himself based on his prior role as the Juvenile Officer of Jackson County. Neither the attorney for the Juvenile Officer nor the guardian ad litem requested recusal. Mother was not present at the hearing.

         On November 5, 2015, a Children's Division caseworker met with Mother while Mother was incarcerated in the Chillicothe Correctional Center to discuss adoption of the Child. The caseworker testified that the purpose of her visit was to introduce herself, to advise Mother about steps she could be taking if she wished to retain parental rights, and to complete the necessary paperwork if Mother wanted to consent to the termination of her parental rights. Mother conveyed to the caseworker that she wanted to request an attorney, and on December 29, 2015, the caseworker forwarded those documents to Mother.

         On January 6, 2016, Mother submitted her request for an attorney to the trial court in the underlying juvenile matter. The trial court appointed counsel to represent Mother in both the underlying juvenile matter and in the termination of parental rights action on January 8, 2016. In February 2016, Mother's appointed counsel for the termination of parental rights action ("appointed counsel") filed a motion for leave of court to file an answer to the adoption petition out of time. The trial court granted the motion, but appointed counsel never filed an answer to the adoption petition.

         On August 19, 2016, the Prospective Adoptive Parents filed their first amended petition for termination of parental rights and adoption ("first amended petition"). The first amended petition alleged that terminating Mother's parental rights to the Child was appropriate because (1) pursuant to section 211.447.5(1)(b), [4] Mother had abandoned the Child for a period of at least six months; (2) pursuant to section 211.447.5(2)(d), the Child had been abused or neglected in that Mother has repeatedly or continuously failed, although physically or financially able, to provide the Child with adequate food, clothing, shelter, or education as previously determined in the underlying juvenile matter; (3) pursuant to section 211.447.5(3), the Child had been under the jurisdiction of the juvenile court for a period of one year and the conditions that led to the assumption of jurisdiction still persist, and there is little likelihood that those conditions will be remedied so that the Child can be returned to the care of Mother in the near future; and (4) pursuant to section 211.447.6, Mother is unfit to be a party to the parent-child relationship. The first amended petition also requested that the trial court enter a judgment approving the adoption of the Child by the Prospective Adoptive Parents. Mother was personally served with a summons and the first amended petition on September 13, 2016, in DeWitt, Arkansas, where she resided after being released from incarceration in August 2016.

         On September 16, 2016, Commissioner Jackson presided over a case management conference in the termination of parental rights action during which Mother's appointed counsel, an attorney for the Prospective Adoptive Parents, an attorney for the Juvenile Officer, and the Child's guardian ad litem were present. Following the case management conference, Commissioner Jackson ordered that the Juvenile Officer be joined as a party pursuant to section 211.447, and ordered that the Children's Division conduct a termination of parental rights study.

         Appointed counsel filed an answer to the first amended petition on Mother's behalf on October 13, 2016. The answer to the first amended petition denied the allegations that a basis for terminating parental rights existed, and asserted the following affirmative defenses: (1) that the Prospective Adoptive Parents failed to state a cause of action upon which relief could be granted; (2) that should the trial court find that Mother abandoned the Child, she successfully repented any period of abandonment or neglect; and (3) that termination of Mother's parental rights is not in the best interests of the Child. The answer to the first amended petition then "reserve[d] the right to assert additional affirmative defenses that may become known during this litigation."

         Appointed counsel continued her representation of Mother, including responding to discovery requests, propounding discovery upon the Prospective Adoptive Parents, and filing a motion to quash the pending deposition of Mother, through March 27, 2017. On March 27, 2017, appointed counsel withdrew as counsel for Mother, and two attorneys ("trial counsel") entered their appearance on behalf of Mother in both the termination of parental rights action and in the underlying juvenile matter. Trial counsel continued to represent Mother through trial in the termination of parental rights action.

         On May 24, 2017, the Prospective Adoptive Parents filed their second amended petition for termination of parental rights and adoption ("second amended petition"), which added G.W., the Child's alleged natural father, as a defendant, and which alleged that terminating his parental rights to the Child was appropriate. The second amended petition included the same bases for termination of Mother's parental rights as the first amended petition and asked that the trial court enter an adoption decree approving the adoption of the Child by the Prospective Adoptive Parents.

         Trial counsel filed an answer to the second amended petition on Mother's behalf on June 26, 2017. The answer to the second amended petition denied that there was a basis to terminate Mother's parental rights and asserted seven affirmative defenses: (1) that the Prospective Adoptive Parents failed to state a cause of action upon which relief could be granted; (2) that, if the trial court should find that Mother abandoned the Child, she successfully repented any period of abandonment or neglect; (3) that termination of Mother's parental rights and adoption of the Child by the Prospective Adoptive Parents is not in the Child's best interests; (4) that Mother was never served with the adoption petition so that notice was never given to Mother, which constituted a violation of her constitutional right to due process; (5) that the termination of parental rights action should be dismissed for failure to issue a summons as required by Rule 54.21; (6) that the termination of parental rights action should be dismissed for failure to obtain service on Mother under Rule 54.21 so that the trial court lacks personal jurisdiction over Mother; and (7) that the Children's Division failed to comply with legal requirements regarding the suitability of the proposed adoption.

         On October 8, 2017, shortly before trial was set to begin, Mother filed a motion to dismiss the termination of parental rights action ("motion to dismiss"). The motion to dismiss argued that dismissal was appropriate for lack of prosecution because the Prospective Adoptive Parents never completed or attempted service of the adoption petition on Mother for over a year after it was filed. The motion to dismiss also claimed that the Prospective Adoptive Parents failed to obtain proper service of the first amended petition on Mother because the requirements for out-of-state service were not met. Finally, the motion to dismiss argued that a violation of due process occurred because the notice did not give Mother an adequate opportunity to defend herself and because she received ineffective assistance of counsel from appointed counsel.

         On October 12, 2017, Commissioner Jackson issued an order denying all of Mother's pending motions. The order also indicated that the trial in the termination of parental rights action would be bifurcated so that the trial court "[would] not entertain issues regarding the appropriateness of the adoptive placement until all issues regarding termination of parental rights and need for consent in the adoption have been determined." The order also indicated that a review of the case file revealed that one of Mother's trial counsel had previously represented the Juvenile Officer in the case but that no written waivers of conflicts had been filed. The order directed the parties to inform the trial court in writing of their understanding of the apparent conflict. The Juvenile Officer filed a waiver of the conflict of interest on October 17, 2017.

         Commissioner Jackson then presided over a fourteen-day trial that took place over the course of nine months, spanning from October 19, 2017, to June 29, 2018. Witnesses included the Prospective Adoptive Parents, the Child's therapist, the Children's Division caseworker, the clinical psychologist who conducted a psychological evaluation of Mother, Mother's therapist, Mother and the Child's family therapist, the guardian ad litem, a Children's Division alternative care worker, a Children's Division service worker, and a police officer who investigated an allegation of child abuse against E.R. Mother did not testify.

         On August 24, 2018, Commissioner Jackson filed his findings of fact, conclusions of law, and recommendation of termination of parental rights of Mother ("proposed judgment").[5] The proposed judgment concluded that Mother had willfully abandoned and had willfully, substantially, and continuously neglected to provide the Child with necessary care and protection for a period of at least six months prior to the filing of the adoption petition so that, pursuant to section 453.040(7), her consent to adoption was not required. The proposed judgment also concluded that the following bases existed to support terminating Mother's parental rights: (1) Mother abandoned the Child pursuant to section 211.447.5(1); (2) the Child had been abused or neglected by Mother pursuant to section 211.447.5(2); (3) the Child had been under the jurisdiction of the juvenile court for more than a year, the conditions that led the assumption of jurisdiction still persist, and conditions of a potentially harmful nature continue to exist pursuant to section 211.447.5(3); and (4) Mother was unfit to be a party to the parent-child relationship pursuant to section 211.447.5(6). The proposed judgment further concluded that termination of Mother's parental rights was in the Child's best interests. The proposed judgment ordered that the Child's custody would remain as ordered in the underlying juvenile matter. The trial court adopted Commissioner Jackson's proposed judgment on August 24, 2018.

         Commissioner Jackson later issued nunc pro tunc findings of fact, conclusions of law, and recommendation of termination parental rights of Mother ("nunc pro tunc proposed judgment") in order to correct the findings to include a court date previously omitted. The trial court adopted the nunc pro tunc proposed judgment as its judgment ("Judgment") on October 11, 2018.

         Mother appeals.[6] Additional facts are discussed in the analysis portion of this Opinion as necessary.

         Standard of Review

         "'Termination of parental rights is an exercise of awesome power, and therefore we review such cases closely.'" In Interest of G.M.G., 525 S.W.3d 162, 164-65 (Mo. App. W.D. 2017) (quoting In re C.F. & A.K., 340 S.W.3d 296, 298 (Mo. App. E.D. 2011)). Our review of a judgment terminating parental rights is in accordance with the standard for court-tried cases set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Id. at 164. "'The trial court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.'" Id. (quoting In Interest of G.E.R. v. B.R., 441 S.W.3d 190, 195 (Mo. App. W.D. 2014)).

         However, if a point on appeal has not been preserved, "[w]e will 'review [it] for plain error only if there are substantial grounds for believing that the trial court committed error that is evident, obvious and clear and where the error resulted in manifest injustice or miscarriage of justice.'" In Interest of S.E., 527 S.W.3d 894, 901 (Mo. ...


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