In the Missouri Court of Appeals Western District IN THE INTEREST OF: K.A.L., ) ) Appellant; ) ) JUVENILE OFFICER, ) ) WD86314 Consolidated Case: WD86374 Appellant, ) OPINION FILED: ) MARCH 19, 2024 v. ) ) H.L., ) ) Respondent. )
Appeal from the Circuit Court of Jackson County, Missouri The Honorable Kevin D. Harrell, Judge
Before Division Two: Anthony Rex Gabbert, Presiding Judge, Karen King Mitchell, Judge, Janet Sutton, Judge
The Juvenile Officer1 appeals the judgment of the Jackson County Circuit Court
denying her petition to terminate the parental rights of H.L. In three points on appeal, the
Juvenile Officer claims that the trial court erroneously applied and misinterpreted the law,
that the judgment was not supported by substantial evidence with respect to the alleged
1 The Guardian Ad Litem also appeals the judgment, and this court consolidated the appeals. The Juvenile Officer and Guardian Ad Litem filed joint opening and reply briefs. For ease of reference, we refer to the Juvenile Officer and Guardian Ad Litem collectively as the Juvenile Officer. grounds for termination, and that the trial court abused its discretion with respect to the
child’s best interest. The judgment is affirmed.
Facts
The child at issue in this case (“Child”) came under the jurisdiction of the court as
an infant pursuant to a petition filed in June 2011 (“the 2011 case”). The petition
contained allegations against Child’s mother (“Mother”) and Child’s putative father
(“Father”). Child was ultimately placed with Mother, and the court released jurisdiction
in July 2012.
The Juvenile Officer filed another petition in September 2017 (“the 2017 case”).
The petition alleged Mother abused and neglected Child. Child was placed in the custody
of the Children’s Division for appropriate placement. Mother stipulated to the allegations
in the first amended petition, and the court sustained the allegations. In a January 2018
disposition hearing, the court stated that paternity had not been established, and the
Children’s Division had been unable to locate Child’s father. The court order allowed
Child’s father, if located, to have supervised visitation with Child. It also ordered the
Children’s Division to offer Child’s father, if located, appropriate services.
Father appeared at an April 2018 case review hearing. Father’s attorney appeared
at a June 2018 case review hearing, a September 2018 permanency hearing, a March
2019 permanency review hearing, an August 2019 permanency hearing, and a February
2020 permanency hearing. The court’s order with respect to Father receiving supervised
visitation and appropriate services remained unchanged during this time.
2 Father’s attorney appeared at a July 2020 permanency review hearing. The court
ordered Father shall have visitation with Child as deemed appropriate by the Children’s
Division. Father appeared at a December 2020 permanency review hearing. The matter
was continued without change. Father appeared at a February 2021 permanency review
hearing. The court subsequently ordered that Child shall have visitation with parents as
deemed appropriate by the Family Support Team and that all visitation shall be at Child’s
discretion.
Father appeared at a permanency hearing held in May 2021, June 2021, and July
2021. The court changed the permanency plan from reunification to termination of
parental rights and adoption. The court found:
The mother is incarcerated. [Father] has not significantly asserted his paternity since the inception of this case and before. Though he has recently expressed an interest in taking custody of the child, he has only visited the child on approximately three occasions since the beginning of the case. He has refused to participate in services designed to assist him to achieve reunification including psychological evaluation, parenting education, individual therapy and drug testing. The court notes that a primary concern in this case is the utter lack of a meaningful relationship between [Father] and [Child] due to his historical lack of concern for and indifference towards the child. The parent child relationship is of such nature that [Father] is unable for the reasonably foreseeable future to care appropriately for the ongoing physical, mental, emotional needs of the child. . . . The child has also stated that she does not desire to be placed with her father in view of his failure to protect her from abuse by the aunt. Safe and appropriate reunification with a parent is not likely to be possible in the near or the foreseeable future.
The court ordered Child to have visitation with Father in family therapy when that is
approved by the Family Support Team, that visitation is subject to Child’s discretion, and
3 that Father have a psychological evaluation and education. Father filed a motion for
rehearing which was denied.
The Juvenile Officer filed a petition for termination of parental rights in December
2021. The petition alleged that Mother consented to the termination of her parental rights
and that Father’s parental rights should be terminated pursuant to sections 211.447.2(1),
211.447.5(2), 211.447.5(3), and 211.447.5(5)(a). 2 A judgment accepting Mother’s
consent to termination of her parental rights was entered in January 2022.
Father appeared at a January 2022 permanency review hearing. The court found:
[Father] does not have the parenting abilities and capacities to provide proper care for [Child]. He was recently psychologically tested and was determined to have an IQ of approximately 40.3 Though the case is 835 days old and a termination of parental rights case has been filed, he has only recently begun to participate in services offered to him to assist him to gain appropriate parenting skills and abilities. [Child] is a fragile juvenile and … requires a high degree of parenting ability for her care. The mother has consented to termination of her parental rights ….
The court ordered that Father shall not have contact with Child and that the Children’s
Division shall provide Father with appropriate services.
2 All statutory citations are to RSMo 2016 as updated through the most recent cumulative supplement unless otherwise indicated. 3 Father’s IQ was not listed as a ground for termination in the first amended petition to terminate parental rights. To the contrary, the Juvenile Officer’s petition explicitly stated it was “not alleging” that Father “has a mental condition that is permanent or such that there is no reasonable likelihood that the condition can be reversed and which renders [Father] unable to knowingly provide the child the necessary care, custody, and control.” Further, the Juvenile Officer does not argue on appeal that Father’s IQ should be considered by this court in determining whether the trial court erred in denying the petition to terminate parental rights. Thus, we do not consider this finding made at a permanency review hearing on appeal.
4 The Juvenile Officer filed a first amended petition for termination of parental
rights in May 2022. It alleged that Father’s parental rights should be terminated under
sections 211.447.5(2), 211.447.5(3), and 211.447.5(5)(a).
Father’s attorney appeared at a June 2022 permanency hearing. The Court
maintained the permanency plan of termination of parental rights and adoption and
ordered that Father shall have such contact with Child as recommended by her therapist,
only at Child’s discretion, and initially therapeutically supervised. The Court also
ordered that Father shall have in-person individual therapy and parent education, and that
Children’s Division shall provide Father appropriate services.
The termination hearing was held in August 2022. Child’s foster care case
manager, Child’s therapist, Father’s daughter, Father’s sister, and Father testified.
In May 2023, the court entered judgment terminating Mother’s parental rights and
denying termination of Father’s parental rights. It found that Father had not failed to
provide for and support Child. Father had made regular child support payments.4 Father
had made progress in complying with the terms of the social service plan. Father had
completed a psychological evaluation, engaged in individual counseling, and completed
parent education services.
The court found that the largest barrier for reunification of Father and Child was
the lack of visits for more than two years because Child refused to visit with Father. The
4 The evidence at trial was that Father had paid court-ordered child support since approximately 2013.
5 court acknowledged that Child’s voice should be heard, but found that allowing Child to
refuse visits with Father heightened Child’s feelings. The court found that there was no
evidence that possible contact between Father and Child had the potential to be so
harmful as to require termination of parental rights.
The court stated that initially all case reunification efforts were geared toward
Mother. Child was returned to Mother’s home in 2020 and then removed in August of
2020. It was after that failed reunification that Father began requesting contact as well as
placement. Since that failed reunification, the Children’s Division had not offered Father
even one visit or family therapy. Despite that, Father has participated in all ordered
social services and demonstrated a strong interest in Child.
The court found that no evidence was presented that Father’s contact with Child
would be harmful to Child’s physical, mental, or emotional wellbeing. The court noted
that Child came into care because of Mother’s actions and that allegations of abuse or
neglect were not adjudicated against Father. It found no evidence of any abuse or neglect
of a duration and nature that rendered Father unfit for the reasonably foreseeable future.
This appeal follows.
Standard of Review
“Termination of parental rights is permitted when a statutory ground for
termination is supported by clear, cogent, and convincing evidence and when termination
is determined to be in the best interests of the child by a preponderance of the evidence.”
6 Interest of A.M.R., 673 S.W.3d 864, 871 (Mo. App. W.D. 2023) (internal quotation marks
omitted). “The party seeking termination bears the burden of proof.” Id.
“On appeal, we apply two different standards of review.” Id. “First, as to the
statutory grounds for terminating parental rights, we will affirm the trial court’s judgment
regarding whether there was clear, cogent, and convincing evidence to support a statutory
ground for termination unless there is no substantial evidence to support it, it is contrary
to the evidence, or it erroneously declares or applies the law.” Id. “Evidence is clear,
cogent and convincing when it instantly tilts the scales in favor of termination when
weighed against opposing evidence and leaves the fact-finder with the abiding conviction
that the evidence is true.” Id. (internal quotation marks omitted). “The judgment will be
reversed only if we are left with the firm belief that the judgment is wrong.” Id. (internal
quotation marks omitted). “We strictly construe the statute governing termination of
parental rights in favor of preserving the parent-child relationship.” Id. “And we defer to
the circuit court’s ability to judge the credibility of witnesses.” Id. (internal quotation
marks omitted).
“Second, as to the determination that termination is in the children’s best interest,
we will reverse [that] determination ... [only] when there is an abuse of discretion.” Id.
(internal quotation marks omitted). “An abuse of discretion occurs only when the trial
court’s ruling is clearly against the logic of the circumstances and is so unreasonable and
arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate
consideration.” Id. (internal quotation marks omitted).
7 “Whether the court erroneously declared or applied the law is reviewed de novo.”
Interest of D.L.P., 638 S.W.3d 82, 96 (Mo. App. E.D. 2021).
Point I
In her first point on appeal, the Juvenile Officer claims the trial court erroneously
applied and misinterpreted the law. She states that a prior finding of abuse or neglect as
to each parent in a section 211.031 action is not a prerequisite to finding any ground for
termination of parental rights pursuant to section 211.447.5.5 The Juvenile Officer argues
that the trial court erred in denying the petition for termination of parental rights.
This point is focused on the court’s findings with respect to section 211.447.5(2)
and 211.447.5(5)(a). That statute provides in relevant part:
5. The juvenile officer or the division may file a petition to terminate the parental rights of the child's parent when it appears that one or more of the following grounds for termination exist:
5 Father argues that, under Missouri Supreme Court Rue 78.07(c), the Juvenile Officer has waived her arguments on appeal because she did not “raise her allegations of error regarding the form or language of the judgment … in a post-trial motion to amend or during the underlying court proceedings.” Rule 78.07(c) applies to “allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings.” The Juvenile Officer’s points on appeal in the current case are not arguing that the court erred regarding the form or language of the judgment. Instead, she argues that the trial court applied an incorrect legal standard with respect to whether Father had been previously adjudicated as having abused or neglected Child and that the judgment is not supported by substantial evidence. Rule 78.07(b) discusses cases tried without a jury and provides that a motion for new trial or motion to amend the judgment are not required to preserve an issue for appellate review if the matter was previously presented to the trial court. Father’s attorney objected several times at trial that Father had not been adjudicated as having abused or neglected Child and that there has never been any lawful process against Father with respect to those things. “The question of the sufficiency of the evidence to support the judgment may be raised whether or not the question was raised in the trial court.” Section 510.310.4; see, e.g., Interest of T.E.L.I., 673 S.W.3d 519, 521 n.3 (Mo. App. S.D. 2023). We will consider the Juvenile Officer’s point on appeal.
8 … (2) The child has been abused or neglected. In determining whether to terminate parental rights pursuant to this subdivision, the court shall consider and make findings on the following conditions or acts of the parent: (a) A mental condition which is shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed and which renders the parent unable to knowingly provide the child the necessary care, custody and control; (b) Chemical dependency which prevents the parent from consistently providing the necessary care, custody and control of the child and which cannot be treated so as to enable the parent to consistently provide such care, custody and control; (c) A severe act or recurrent acts of physical, emotional or sexual abuse toward the child or any child in the family by the parent, including an act of incest, or by another under circumstances that indicate that the parent knew or should have known that such acts were being committed toward the child or any child in the family; or (d) Repeated or continuous failure by the parent, although physically or financially able, to provide the child with adequate food, clothing, shelter, or education as defined by law, or other care and control necessary for the child's physical, mental, or emotional health and development. … (5)(a) The parent 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 are determined by the court to be of a duration or nature that renders the parent unable for the reasonably foreseeable future to care appropriately for the ongoing physical, mental, or emotional needs of the child.
In the first amended petition, the Juvenile Officer sought to terminate Father’s
parental rights on three grounds. One ground was section 211.447.5(2). The petition
alleged that Child has been abused or neglected as previously determined in the 2017
adjudication. The Juvenile Officer stated she was not alleging the factors found in
9 section 211.447.5(2)(a)-(c). The petition only made allegations with respect to the factor
in section 211.447.5(2)(d). It stated that Father has failed to provide and support Child,
that he has only had three visits with Child, that Child does not want contact with Father,
that Father and Child do not have a bond, that Father does not believe what Child says
about being abused, that Father is belligerent, that Father is not protective, and that Father
is unable to meet Child’s needs. A second ground identified in the petition was section
211.447.5(5)(a). The petition made the same allegations as it did for section
211.447.5(2).
During the hearing, the Juvenile Officer6 asked the court to take judicial notice of
the 2011 case involving Child. Defense counsel noted that the court could take judicial
notice of any case and that the 2011 case might be relevant to the best interest analysis.
However, defense counsel also argued that the 2011 case was not pled in either the
petition or amended petition. For that reason, she requested the 2011 case not be used as
a basis for one of the grounds of termination of parental rights.
The Juvenile Officer introduced evidence regarding whether Father’s sister
physically abused Child. Defense counsel objected that the amended petition did not
contain allegation about any alleged abuse by the Child’s aunt. The Juvenile Officer
responded that the evidence was relevant to parenting capacity and grounds, best interest,
and why Child has refused contact with Father. The Juvenile Officer stated “I agree
6 References to the Juvenile Officer include the counsel representing the Juvenile Officer in court.
10 we’re not adjudicating whether or not she was physically abused, but again I think it’s
certainly relevant and provides context to the Court.” Defense counsel reiterated that
there was a lack of adequate pleading.
Later, defense counsel again objected to a line of questions about the aunt
potentially abusing Child in the past. Defense counsel stated: “So this is really
problematic because again this is not as this is pled that [Father] was present for physical
abuse and failed to protect.” These arguments were also brought up during defense
counsel’s motion to dismiss at the close of the Juvenile Officer’s case.
In its judgment, the trial court discussed how Child came into care in 2017 solely
because of Mother’s actions. It noted that the 2017 case never involved an adjudication
that Father abused or neglected Child. The court stated that parents cannot have parental
rights terminated on a basis that was not alleged in the petition.
Now on appeal, the Juvenile Officer argues that the trial court misapplied the law
in its findings pertaining to sections 211.447.5(2) and 211.447.5(5)(a). She focuses on
the language that Child came into care only because of Mother, a finding of abuse or
neglect was made only against Mother, and that those circumstances are not sufficient to
terminate Father’s parental rights under those two sections. The Juvenile Officer states
that the trial court misapplied the law in finding that it cannot terminate parental rights
under sections 211.447.5(2) or 211.447.5(5)(a) without a prior sustained finding against
Father in the underlying abuse and neglect case.
11 We disagree with the Juvenile Officer’s interpretation of the judgment. The trial
court’s judgment does not state that it cannot terminate parental rights without a prior
sustained finding against Father. An issue at trial was whether the Juvenile Officer could
present evidence that Father knew of and failed to protect Child from abuse. Defense
counsel objected multiple times that the Juvenile Officer should be restricted to the
allegations in the petition. The petition explicitly stated it was not alleging the factor in
section 221.44.5(2)(c) regarding whether Father committed physical, emotion, or sexual
abuse toward Child or should have known such acts were being committed.
The trial court found that it could not terminate parental rights for a reason not
alleged in the petition. It cited multiple cases that support this statement. The trial court
was correct that parental rights cannot be terminated on a basis not alleged in the petition.
In re S.M.H., 160 S.W.3d 355, 365 (Mo. banc 2005). The petition must fairly advise the
parent of the allegations the parent needs to defend against. Id. at 366.
The Juvenile Officer argues that section 211.447.5(2) only requires that the child
have been abused or neglected. “Section 211.447 does not limit termination of parental
rights only to those grounds which arose prior to the juvenile court's assumption of
jurisdiction.” Interest of K.T.K. v. Crawford Cnty. Juv. Off., 229 S.W.3d 196, 202 (Mo.
App. S.D. 2007). “Certainly circumstances and behaviors arising after the juvenile
court’s assumption of jurisdiction are highly relevant in determining whether grounds for
termination exist.” Id. (“While … the juvenile court assumed jurisdiction of the children
largely due to the neglect of Mother … , we hold that neglect on the part of Father,
12 arising after the juvenile court's assumption of jurisdiction, may form the basis for the
termination of Father's parental rights….”).
“A finding that a child has been previously adjudicated abused is not sufficient to
support termination of parental rights.” In re J.M.N., 134 S.W.3d 58, 68 (Mo. App. W.D.
2004). “[I]t is insufficient merely to point to past acts, note that they resulted in abuse or
neglect and then terminate parental rights....” Id. (internal quotation marks omitted).
“Past behavior can support grounds for termination, but only if it is convincingly linked
to predicted future behavior.” Id. (internal quotation marks omitted). “Moreover, [t]here
must be some explicit consideration of whether the past acts provide an indication of the
likelihood of future harm.” Id. (internal quotation marks omitted). “The abuse or neglect
sufficient to support termination under [section 211.447.5(2)] must be based on the
conduct at the time of the termination, not just at the time jurisdiction was initially
taken.” Id.
The Juvenile Officer argues that the trial court was mistakenly concerned that no
count was alleged against Father in the underlying abuse and neglect matter. We find that
the trial court could appropriately consider the full history of the case in evaluating
whether the requirements of section 211.447.5 have been proven by clear and cogent
evidence.
The Juvenile Officer also notes evidence from the 2011 case and testimony that
Father was present for and did not intervene and protect Child from abuse by his sister.
13 This evidence is more appropriately addressed in Point II where the Juvenile Officer
argues that the court’s judgment is not supported by substantial evidence.
We do not find that the trial court erroneously applied and misinterpreted the law.
Even if it had, however, that would not result in a reversal of the trial court’s judgment.
“[T]his Court reviews for prejudice and not mere error.” Interest of C.E.B., 565 S.W.3d
207, 211 (Mo. App. S.D. 2018) (internal quotation marks omitted). “Trial court error is
not prejudicial unless there is a reasonable probability that the trial court’s error affected
the outcome of the trial.” Id. (internal quotation marks omitted). The Juvenile Officer
has to show that the error committed by the trial court’s mistake materially affected the
merits of the termination action. Interest of C.E.A., 646 S.W.3d 419, 430 (Mo. App. S.D.
2022). She must show actual prejudice. Id. The court did not base its denial on the
alleged mistake of law. It went on to make detailed findings about all parts of the
statutory grounds for termination. Any mistake of law was not the basis for the trial
court’s decision and was not prejudicial. See Interest of K.R., 674 S.W.3d 9, 21 (Mo.
App. W.D. 2023).
The point is denied.
Point II
In her second point on appeal, the Juvenile Officer claims the evidence presented
supported termination of parental rights under sections 211.447.5(2), 211.447.5(3), and
211.447.5(5)(a). She states that the trial court’s judgment was not supported by
14 substantial evidence. The Juvenile Officer argues that the trial court erred in denying the
petition for termination of parental rights.
The Juvenile Officer’s second point seeks to challenge the denial of each of the
three independent statutory grounds which the trial court denied. “A point relied on
violates Rule 84.04(d) when it groups together multiple, independent claims rather than a
single claim of error, and a multifarious point is subject to dismissal.” Interest of D.T.H.,
652 S.W.3d 738, 749 (Mo. App. W.D. 2022). “By asserting that the trial court erred with
respect to three independent legal determinations, [the Juvenile Officer’s second] point is
multifarious and preserves nothing for review.” Id. “We have the discretion to review
non-compliant briefs ex gratia where the argument is readily understandable.” Interest of
D.L.P., 638 S.W.3d at 91 n.2. “We cautiously exercise this discretion because each time
we review a noncompliant brief ex gratia, we send an implicit message that substandard
briefing is acceptable. It is not.” Id.
To present a not-supported-by-substantial-evidence challenge, the Juvenile
Officer’s brief must complete three distinct analytical steps:
(1) identify a challenged factual proposition, the existence of which is necessary to sustain the judgment; (2) identify all of the favorable evidence in the record supporting the existence of that proposition; and, (3) demonstrate why that favorable evidence, when considered along with the reasonable inferences drawn from that evidence, does not have probative force upon the proposition such that the trier of fact could not reasonably decide the existence of the proposition.
15 In Interest of C.Z.N., 520 S.W.3d 828, 834 (Mo. App. S. D. 2017) (internal quotation
marks omitted). The Juvenile Officer’s point fails to follow this framework.
Accordingly, “her arguments are analytically useless and provide no support for her
challenge.” Id. at 835 (internal quotation marks omitted).
“Moreover, it is significant that [the Juvenile Officer] bore the burden of proving
the existence of a statutory ground for termination of … parental rights.” Interest of
A.M.R., 673 S.W.3d at 873. “When the burden of proof is placed on a party for a claim
that is denied, the trier of fact has the right to believe or disbelieve that party’s
uncontradicted or uncontroverted evidence.” Id. (internal quotation marks omitted). “If
the trier of fact does not believe the evidence of the party bearing the burden, it properly
can find for the other party.” Id. (internal quotation marks omitted). “Generally, the
party not having the burden of proof on an issue need not offer any evidence concerning
it.”7 Id. at 873-74 (internal quotation marks omitted). “Consequently, substantial
7 Though not raised by the Juvenile Officer in her brief, section 211.447.5(5)(b)e states that Father is presumed to be unfit upon a showing that Child has been under the jurisdiction of the juvenile court and in foster care for at least fifteen of the twenty-two months prior to the filing of the petition. The transcript states that Child returned to live with Mother in June 2020. She was removed from Mother’s home in August 2020. The petition was filed in December 2021. Given those dates, it seems as though that presumption applies to Father. We note that it was not pled in the amended petition and the presumption is not mentioned in the Juvenile Officer’s brief. Assuming it does apply, Father had the burden of overcoming the presumption of unfitness. In re D.T.L., 422 S.W.3d 465, 467 (Mo. App. S.D. 2014). We find he did so when we discuss this ground for termination later in this point.
16 evidence supporting a judgment against the party with the burden of proof is not required
or necessary.” Id. at 874 (internal quotation marks omitted).
In deciding whether to terminate parental rights under Section 211.447.5(2), the
trial court must make findings on four factors. “[T]here is no statutory requirement that a
factor listed under a ground for termination be proven by ‘clear, cogent, and convincing
evidence;’ rather, that burden of proof applies to the ground for termination.” In Interest
of T.T.G. v. K.S.G., 530 S.W.3d 489, 495 (Mo. banc 2017) (internal quotation marks
omitted). “Factors (a) though (d) are simply categories of evidence to be considered
along with other relevant evidence, rather than separate grounds for termination in and of
themselves.” Id. (internal quotation marks omitted).
Of the four factors in section 211.447.5(2), the Juvenile Officer only alleged and
the court only made detailed findings with respect to (d):
No evidence was presented that showed that the father has repeatedly and continuously failed, although physically and financially able to do so, to provide the child with adequate food, clothing, shelter, education, and other care necessary for her physical, mental or emotional health and development. Specifically, the father had contact with the child in the past before the child began refusing contact with the father in 2020. Further, since 2020 the father has requested to have contact and visitation with the child and has provided support for the child’s well-being in the form of food, clothing, supplies, and gifts as well as made regular child support payments…. Evidence that a parent has provided some contribution, even if not fully sufficient for all of the child’s support demonstrates the parent’s intent to continue the parent-child relationship and mitigates against termination. … Additionally, there was no evidence of the father’s past conduct relating to support of the child, prior to the child’s removal from the mother, of failing to provide financially for the child. …
17 The Juvenile Officer focuses on evidence that would support termination of
Father’s parental rights. That is against our standard of review.
The Juvenile Officer also states that some of the trial court’s findings are contrary
to the evidence presented. Specifically, the trial court found that since 2020 Father had
provided support for Child. The Juvenile Officer states that Father stopped providing
support in terms of food, clothing, supplies, or gifts in 2019. Father testified of his desire
to provide for and support Child but stated it was hard when he was not allowed to see
her. He paid child support until the State stopped collecting it because of Father’s
disability benefits. The foster care case manager testified that she was assigned to
Child’s case in 2020. She testified that she talked to Father about how gifts are not
enough. She also testified:
Q. Okay. So her father’s desire to have contact and even provide for her, provide gifts she won’t take, right?
A. No.
Q. But isn’t that a good thing?
A. I mean, gifts are a good thing for a child, but that’s not the most important piece especially for a kid like [Child] that’s not what she cares about.
Q. Right. But gifts are sometimes a sign that somebody cares, right?
A. Yes.
Q. Okay. And [Father] has made it clear that he cares he wants to see her, he wants to provide her, right?
A. Yes, he has.
18 We find that the court’s findings in denying the petition with respect to section
211.447.5(2) are supported by substantial evidence.
In denying the petition with respect to section 211.447.5(3), the court found that
the conditions which led to the assumption of jurisdiction do not still exist since those
conditions were solely Mother’s actions. It found that conditions of a potentially harmful
nature did not continue to exist regarding Father. Father had made progress in complying
with the social services plan. He completed a psychological examination, participated in
individual counseling, and engaged in parent education services. The court found that the
largest barrier to reunification was Child’s refusal to visit with him. The court found no
evidence that contact with Father would be so harmful to Child as to require termination.
It faulted the Children’s Division for not offering Father any visits with Child or family
therapy with Child since 2020. The court concluded that Father has shown a strong
interest in Child and nothings suggests that Father’s contact with Child would be harmful
to Child’s physical, mental or emotional wellbeing.
Again, the Juvenile Officer’s argument on appeal is a recitation of evidence that
could have supported termination of parental rights. That is against our standard of
review. We find that the court’s findings in denying the petition with respect to section
211.447.5(3) are supported by substantial evidence.
In denying the petition with respect to section 211.447.5(5)(a), the court found that
Father is not unfit. It noted that Child came into custody because of Mother’s actions,
19 that Father has participated in all requested services, and that Father has been denied
contact with Child. The court stated that there was no evidence of any abuse or neglect
of a duration and nature that rendered Father unfit for the reasonably foreseeable future.
Again, the Juvenile Officer’s argument on appeal focused on evidence that could have
supported termination of Father’s parental rights. That is against our standard of review.
We find that the court’s findings in denying the petition with respect to section
211.447.5(5)(a) are supported by substantial evidence.
“The bond between parent and child is a fundamental societal relationship.” In re
K.A.W., 133 S.W.3d 1, 12 (Mo. banc 2004). “A parent's right to raise [his] children is a
fundamental liberty interest protected by the constitutional guarantee of due process.” Id.
“It is one of the oldest fundamental liberty interests recognized by the United States
Supreme Court.” Id. “The fundamental liberty interest of natural parents in raising their
children does not evaporate simply because they have not been model parents or have lost
temporary custody of their children to the State.” Id. “Those faced with forced
dissolution of their parental rights have a more critical need for protections than do those
resisting state intervention into ongoing family affairs.” Id. “The termination of parental
rights has been characterized as tantamount to a civil death penalty.” Id. (internal
quotation marks omitted). “It is a drastic intrusion into the sacred parent-child
relationship.” Id. (internal quotation marks omitted). “Statutes that provide for the
termination of parental rights are strictly construed in favor of the parent and preservation
of the natural parent-child relationship.” Id.
20 “A trial court is free to disbelieve any, all, or none of th[e] evidence, and [t]he
appellate court’s role is not to re-evaluate testimony through its own perspective.”
Interest of A.M.R., 673 S.W.3d at 873 (internal quotation marks omitted). “The trial court
receives deference on factual issues because it is in a better position not only to judge the
credibility of the witnesses and the persons directly, but also their sincerity and character
and other intangibles which may not be completely revealed by the record.” Id. (internal
quotation marks omitted). Here, it appears that the trial court found credible the
testimony supporting denial of the petition.
Point III
In her third point on appeal, the Juvenile Officer claims the trial court erred in
finding that termination of parental rights was not supported by substantial evidence. She
states that the trial court abused its discretion. The Juvenile Officer argues that the
evidence presented supported termination of parental rights being in Child’s best interest
pursuant to section 211.447.7.
We do not address the best interest of Child until the Juvenile Officer demonstrates
that grounds for termination exist. Interest of T.M.P., 667 S.W.3d 124, 135 (Mo. App.
E.D. 2022). Because we have found grounds for termination do not exist, we need not
discuss this point on appeal. The point is denied.
21 Conclusion
The judgment is affirmed.
_______________________ Anthony Rex Gabbert, Judge
All concur.