Kierst v. T.M.

954 S.W.2d 429, 1997 Mo. App. LEXIS 1471
CourtMissouri Court of Appeals
DecidedAugust 19, 1997
DocketNo. WD 53435
StatusPublished
Cited by10 cases

This text of 954 S.W.2d 429 (Kierst v. T.M.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kierst v. T.M., 954 S.W.2d 429, 1997 Mo. App. LEXIS 1471 (Mo. Ct. App. 1997).

Opinion

ULRICH, Chief Judge, Presiding Judge.

T.M. (Father) appeals the trial court’s termination of his parental rights to his two minor children, T.T. and T.T. He claims that termination of his parental rights was not in the best interests of the children and was against the weight of the evidence. Specifically, he asserts that the juvenile officer’s action in denying him visitation with the children after the filing of the termination petition effectively terminated his parental rights without due process of law and that the evidence on which the trial court based its decision was a result of this “constructive” termination. Because termination of Father’s parental rights was in the best interests of the children and was supported by the evidence, the judgment of the trial court is affirmed. .

FACTS

T.T., a femále child born March 25, 1990, and T.T., a male child born April 23, 1991, were taken under the jurisdiction of the family court on December 7, 1993, pursuant to amended petitions alleging that the children, along with their five siblings, were without proper care, custody, and support. Specifically, the petitions alleged that the children’s mother was habitually homeless and repeatedly left the children in the care of others without making proper arrangements for their care and support. Additionally, the mother allegedly admitted to having a drug and alcohol problem and that she was in need of treatment. Having sustained the petitions and found the children in need of care and treatment, the family court placed the children in the custody of Darrian Thomas and Patricia Ellis under the supervision of the Division of Family Services (DFS).

On March 30, 1994, requests for detention in the interest of T.T. and T.T. were filed in the family court alleging that the children were in need of protection. Orders of detention were granted the next day by a family court commissioner placing the children in the care and custody of the DFS.

Motions to modify the December 1993 judgments were filed on March 31, 1994, again alleging that the children were without proper care, custody, and support. The motions asserted that Darrian Thomas had not been providing care for the children and that Patricia Ellis had not provided a stable residence for the children in that on March 13, 1994, a shooting occurred in her residence involving her associates. Following receipt of evidence on the motions, the family court committed the children to the custody of the DFS on June 2,1994, finding that the mother had neither completed drug treatment nor made sufficient progress in therapy and Father had little contact with the children. It recommended aggressive efforts to reunify.

On April 10,1995, the juvenile officer filed petitions for termination of parental rights [431]*431against Father and the children’s mother. The petitions alleged, among other things, that the children had no emotional ties with the parents, the parents had not maintained regular contact with the children, the parents had not provided financial support for the children when able to do so, and the parents had demonstrated disinterest in or a lack of commitment to the children.

Thereafter, Father filed a motion on January 8, 1996, requesting visitation with the children. The motion alleged that paternity tests in November 1995 revealed Father to be the natural father of the children, that DFS had denied him visitation with the children because termination petitions had been filed, and that he wished to establish a visitation schedule with the children. The motion was never heard.1

A hearing on the petitions for termination was held on March 14, 1996. Several DFS social workers assigned to the children’s case testified regarding Father’s contact with the children since 1993. According to this testimony, Father attended a Permanency Evaluation Team (PET) meeting in October 1993 and indicated that he wanted custody of the children. At the meeting, an appointment was made for a home study to be conducted at Father’s residence. Father, however, failed to meet with the social worker on the day of the appointment. Although he telephoned a social worker three times during October 1993, he never left a return number and never contacted the social worker to reschedule the home study or to request any services including visitation.

Father’s next contact with DFS occurred on April 11, 1994, when Father telephoned a social worker indicating that he wanted his aunt to have custody of the children. He also stated that he did not have the financial resources to support the children at that time. Father did not contact DFS again until July 1995 after the filing of the termination petitions.

Through a telephone call in July 1995, Father requested paternity tests although he had previously acknowledged paternity of the children. He also requested visitation. DFS denied visitation because Father had not requested or received visitation prior to the filing of the termination petitions, and the paternity tests were arranged. The tests confirmed Father’s paternity in October 1995, and he again requested visitation.

Three or four more visitation requests were made by Father in January and February 1996. From October 1993 until the time of trial in March 1996, Father did not provide the children any financial support nor did he have any contact with the children, other than on the day of the paternity tests, through letters, cards, gifts, or phone calls.

Testifying on his own behalf, Father admitted that he only wanted contact with the children but not custody because he was financially unable to support them. The trial court terminated Father’s parental rights in T.T. and T.T. on September 6, 1996, and ordered the children to remain in the custody of DFS. This appeal followed.

STANDARD OF REVIEW

A trial court’s order terminating parental rights will be upheld on appeal unless no substantial evidence supports the order, it is contrary to the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In reviewing the sufficiency of the evidence to support parental rights termination, an appellate court views [432]*432the facts and all reasonable inferences drawn therefrom in the light most favorable to the trial court’s order. In Interest of J.M.L., 917 S.W.2d 193, 195 (Mo.App.1996). An appellate court will reverse the termination of parental rights only when left with a firm belief that the judgment is wrong. Id.

A parent’s rights may be terminated by the trial court where termination is in the best interests of the child and clear, cogent and convincing evidence of one or more of the statutory grounds for termination exists. Id.; § 211.447.2, RSMo 1994.2 Clear, cogent and convincing evidence is that evidence which “instantly tilts the scales in favor of termination when weighed against the evidence in opposition.” In Interest of D.A.H., 921 S.W.2d 618, 621 (Mo.App.1996).

DISCUSSION

The trial court terminated Father’s parental rights based on the statutory grounds of abandonment, section 211.447.2(1), and neglect, section 211.447.2(2)(d).

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Bluebook (online)
954 S.W.2d 429, 1997 Mo. App. LEXIS 1471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kierst-v-tm-moctapp-1997.