W.H. v. S.B.

245 S.W.3d 316, 2008 Mo. App. LEXIS 260
CourtMissouri Court of Appeals
DecidedFebruary 25, 2008
DocketNo. 28324
StatusPublished
Cited by26 cases

This text of 245 S.W.3d 316 (W.H. v. S.B.) 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
W.H. v. S.B., 245 S.W.3d 316, 2008 Mo. App. LEXIS 260 (Mo. Ct. App. 2008).

Opinion

JEFFREY W. BATES, Judge.

S.B. (Father) appeals from a judgment terminating his parental rights to E.F.B.D.1 Father’s parental rights were terminated on the ground of abandonment pursuant to § 211.447.4(l)(b).2 On appeal, Father contends there was insufficient evidence to prove this statutory ground for termination. Alternatively, he contends there was sufficient evidence to show that he repented of his abandonment of E.F.B.D. This Court affirms.

To terminate parental rights, a trial court must use a two-step analysis. In re S.J.H., 124 S.W.3d 63, 66 (Mo.App.2004). In the first step, the court must find by clear, cogent and convincing evidence that one or more statutory grounds for termination exist. § 211.447.5; In re P.L.O., 131 S.W.3d 782, 788 (Mo. banc 2004). “Clear, cogent, and convincing evidence is evidence that instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true.” In re 160 S.W.3d 355, 362 (Mo. banc 2005). This standard of proof may be satisfied even though the court has contrary evidence before it or the evidence might support a different conclusion. In re Adoption of W.B.L., 681 S.W.2d 452, 454 (Mo. banc 1984); In re AK.F., 164 S.W.3d 149, 151 (Mo.App.2005). After finding one or more statutory grounds for termination have been proven, the trial court then moves to the second step and must determine, by a preponderance of the evidence, whether the termination of parental rights is in the child’s best interest. § 211.447.5; P.L.O., 131 S.W.3d at 789; S.J.H., 124 S.W.3d at 66.

On appeal, we review a trial court’s decision that one or more statutory grounds for termination exist to determine whether the ruling is supported by substantial evidence, is against the weight of the evidence, or involves an erroneous application or declaration of the law. 160 S.W.3d at 362. We will not reverse the trial court’s decision unless we are left with the firm belief that the decision was wrong. Id. We defer to the trial court’s assessment of witness credibility. In re C.F.C., 156 S.W.3d 422, 426 (Mo.App.2005). “[T]he appellate court defers to the trial court on factual issues because it is in a better position not only to judge the credibility of witnesses and the persons directly, but also their sincerity and character and other trial intangibles which may not be completely revealed by the record.” W.B.L., 681 S.W.2d at 455. We also bear in mind that the trial court was free to believe all, part or none of a particular witness’ testimony. In re L.R.S., 213 S.W.3d 161, 164 (Mo.App.2007). The facts and the reasonable inferences derived therefrom are considered in the light most favorable to the judgment. In re L.N.D., 219 S.W.3d 820, 822 (Mo.App.2007); In re [320]*320L.M., 212 S.W.3d 177, 180 (Mo.App.2007). Thus, conflicting evidence will be reviewed in the light most favorable to the trial court’s decision. In re A.S.W., 137 S.W.3d 448, 452-53 (Mo. banc 2004). Viewed in that fashion, the following evidence was adduced at trial.

E.F.B.D. was born on June 18, 1993. Her biological parents are P.C. (Mother) and Father. The couple was not married and lived apart. E.F.B.D. resided with Mother and spent every other weekend with Father until August 1994, when she was 14 months old. At that point, Father failed to return E.F.B.D. after a routine visit. A deputy sheriff and a DFS caseworker came to Father’s house and ordered him to turn E.F.B.D. over to Mother. After this incident, Mother left the area with E.F.B.D. Mother kept in touch with Father’s half-brother, who kept Father informed of where Mother and E.F.B.D. were living.

In 1996, Mother and the Division of Child Support Enforcement (DCSE) filed a petition in the Circuit Court of Greene County, Missouri. The petition sought to change E.F.B.D.’s last name to that of Mother’s late husband, establish Father’s paternity and establish a child support order. Father was served with the petition, but he did not appear at the hearing. Between May and October 1997, Mother received child support payments of approximately $117 per month from Father. DCSE knew Mother’s address and was sending Father’s support payments to her. Between October 1997 and March 2001, Father provided no monetary support for E.F.B.D.

In March 2001, the Lawrence County juvenile officer filed a petition requesting that E.F.B.D., then nearly 8 years old, be placed in protective custody and that temporary legal and physical custody of her be placed with DFS due to a history of child abuse and neglect reports involving the child and her siblings.3 The court entered an order granting the relief requested in the petition and appointed a Guardian Ad Litem (GAL) for E.F.B.D. Father’s name and address for notice purposes appeared on the petition and investigation report. When the court held a hearing a week later to determine temporary custody, a docket entry noted that “[Father of E.F.B.D.] fails to appear.”

In April 2001, DFS placed temporary physical custody of E.F.B.D. and her younger half-sister, L.D., with foster parents W.H. and K.H.4 That same month, Father contacted E.F.B.D.’s caseworker, Brandi Parris (Parris). On April 30, 2001, Parris met with Father and his mother (Grandmother), who both requested that custody of E.F.B.D. be placed with either of them. Parris specifically informed Father that to obtain custody, he would have to complete a Written Service Agreement (WSA) and provide child support to E.F.B.D. Father said that he would do so.

After the meeting, Parris ran a “Child/ Abuse and Neglect screening” to determine if either party had any involvement with DFS. She found that Cass County then had an open investigation regarding Father, his fiancée, and her daughter. The daughter had alleged that Father sexually fondled her. A no-contact order had been issued, so Father was living with Grandmother at the time. Because the [321]*321investigation was pending, Father was not considered as an immediate placement for E.F.B.D. A favorable outcome to the investigation, however, would permit Father to be considered a possible long-term placement for E.F.B.D. The next day, Parris submitted home study requests for both Father’s home and Grandmother’s home in Jackson County, where they resided.

On May 31, 2001, Father attended the next scheduled family support meeting. Thereafter, Father did not call to check on E.F.B.D.’s welfare or send anything for her support.

In June 2001, Parris received two letters from a Jackson County caseworker who was responsible for conducting the home studies of Father and Grandmother. The first letter stated that Father’s home study case had been closed because the caseworker made two attempts to contact Father, and he failed to respond.

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Bluebook (online)
245 S.W.3d 316, 2008 Mo. App. LEXIS 260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wh-v-sb-moctapp-2008.