Missouri Department of Social Services, Children's Division v. C.B.G.
Docket: Nos. SD 31238, SD 31239
Court: Missouri Court of Appeals; January 29, 2012; Missouri; State Appellate Court
C.B.G., the father, appeals the termination of his parental rights to his son, C.J.G., born in December 2001 and taken into protective custody two days later. The child has remained in the same foster home since then. The court addresses only the key points of appeal, concluding that substantial evidence does not support the grounds for termination and reversing the judgment.
The case is notable for its lack of disputed facts. In 2001, both parents faced significant legal and personal issues, leading to C.J.G.'s removal from the mother due to a hotline complaint about the abuse of one of the father's older children. This child had visible bruises, prompting the father to report the incident after initially taking the child to the hospital. Although he faced pressure to act, there were no allegations of his involvement in the abuse.
After the incident, the father was advised by the Division of Children’s Services to seek an order of protection against the mother. He had custody of his two older children, but they were placed in foster care and later lived with their biological mother in Arizona due to the abuse incident. The mother was convicted of child abuse and served approximately two years in prison.
During her incarceration, the mother participated in various rehabilitation programs, obtained her GED, and has been drug and alcohol-free since her release in 2004. Post-release, she has continued her education and works part-time.
A hotline report received in 2005 raised concerns about the parents' history, including the mother's previous abuse of the father's children and the father's legal troubles, which included assaulting a police officer and DWI. However, subsequent investigations deemed the reports unsubstantiated, noting that the home environment was appropriate and that the family was engaged in counseling.
The father was advised prior to C.J.G.'s birth to consider adoption for the child but declined the suggestion. The court ultimately determined that the evidence did not substantiate the reasons for terminating his parental rights.
C.J.G. was born while Father was incarcerated. In late 2003, Father was in a halfway house but returned to prison after failing to adhere to its rules. During his incarceration, he engaged in various programs for personal improvement, including Long Distance Dads and the SATOP substance abuse treatment. Brian Eads, a program coordinator, noted Father’s commitment and leadership in these initiatives. Father earned his GED, took technical classes, and participated in the educational program Breaking the Barriers.
Father and Mother married in 2005, with their daughter born that year. He reported no drug use since 2003 and no alcohol consumption since 2007, linking the latter to personal tragedy. Although he experienced sporadic income working in construction, he has been actively involved in his church and community service.
For nine years, Father consistently sought involvement in C.J.G.'s life through letters, gifts, and requests for visitation. Despite his efforts, he primarily received updates from Mother. Mother, despite her incarceration for child abuse, had unsupervised visits with C.J.G. until her imprisonment, while Father’s visitation rights were unclear and restricted. Following Mother's release, the Children’s Division aimed for her reunification with C.J.G. while concurrently considering adoption. The case plan evolved, and by June 2004, the court determined that reunification was not in C.J.G.'s best interest, changing the plan to adoption by the foster parents.
In 2003, the Children’s Division initiated its first petition to terminate Father’s parental rights, but there was no signed service agreement concerning C.J.G. Following this petition, a rough draft of an agreement was sent to Father’s attorney, but no services were provided to Father. A judgment terminating Father's rights was entered in 2006 but was reversed due to the failure to provide required investigation and social study prior to the dispositional hearing. The Children’s Division subsequently filed a second petition, which was dismissed, and a third petition in 2009. Workers from the Division claimed they were not obligated to provide services to Father due to their termination requests.
An amended judgment terminating Father’s parental rights was entered on March 21, 2011, based on two statutory grounds: neglect and failure to rectify. The court found that Father’s chemical dependency hindered his ability to provide necessary care for the child, evidenced by his long-term drug use and his failure to complete requested drug treatment after his release from prison in 2003. Despite being physically and financially capable, Father provided only nominal support for the child.
Additionally, the court noted that Father remained married to a woman convicted of child abuse involving the child’s sibling, indicating a lack of progress that would enable a return of custody. Father did not comply with the terms of a social service plan presented over seven years prior, failing to complete drug treatment, a psychological evaluation, or anger management classes. The Children’s Division was unable to assist Father in adjusting his circumstances due to his refusal to cooperate with available services, leading to a conclusion that he suffers from a chemical dependency that precludes adequate care for the child.
The court evaluated additional factors regarding the child's best interests under section 211.447.7, concluding that the child, who has been in foster care since birth, has minimal emotional ties to the presumed Father, and that continuing the relationship is harmful. The Father has not maintained regular visitation due to court-imposed restrictions and provides only minimal voluntary financial support. It is unlikely that additional services will result in a significant parental adjustment that would allow the child to return to him within a reasonable timeframe. The Father failed to sign or comply with a service agreement from November 2003, indicating a lack of commitment. The court placed significant weight on the Father’s conduct post-petition.
The standard of review for terminating parental rights requires clear, convincing evidence that strongly favors termination, and such actions are taken with caution due to their serious implications on family rights. Statutory provisions for termination are strictly construed to favor preserving the parent-child relationship, necessitating strict compliance with requirements. Past behavior can justify termination only if it is convincingly linked to future risks of harm. The court emphasized that evaluations of neglect must be based on circumstances at the termination time, not just at the initial jurisdiction. The trial court found the Father’s chemical dependency a factor in his inability to provide adequate care, but there was insufficient evidence to support ongoing dependency, despite past admissions and a misdemeanor DWI charge. The Father raised eighteen points of error on appeal, with fifteen challenging the statutory grounds for termination. The discussion will be organized around the two statutory grounds identified by the trial court.
Father's testimony regarding his sobriety since 2003 from drugs and since 2007 from alcohol was deemed unpersuasive by the court, yet the Children's Division failed to present evidence of an ongoing drug lifestyle. Evidence indicated Father is married, successfully raising a child, attending college, and acknowledging past mistakes, portraying him as a rehabilitated individual. He participated in various counseling programs, verified by the Children’s Division, including anger management and family counseling. Father also completed a substance abuse program while incarcerated, providing completion certificates.
The Children's Division did not request further drug treatment following his release and he tested negative for drugs when tested. There was insufficient evidence to claim Father failed to provide adequate food, clothing, shelter, or education for his children. Although the court noted his limited child support payments, evidence showed he contributed $3,190 towards arrears and that Mother paid $5,170.71 in child support, indicating a combined effort in caring for their child.
The trial court’s decision to terminate parental rights due to neglect lacked substantial evidence regarding Father's current conduct. Father has not worked regularly but has struggled due to economic conditions; however, he and Mother adequately care for their second child with severe medical issues. The basis for jurisdiction was Father’s incarceration at the child's birth, not indicative of future parenting failure. His prompt action to provide medical care for his child and report concerns against a former partner suggests a commitment to parenting. The court's findings regarding neglect and failure to rectify conditions leading to jurisdiction were unsupported by substantial evidence.
Father is currently not incarcerated and has not been since 2004. The court determined that his marriage to Mother, who has a felony conviction for child abuse, constituted a harmful condition warranting the termination of his parental rights. However, substantial evidence contradicts this conclusion, as even the Children’s Division did not view Mother's contact with C.J.G. as harmful. Following an incident of abuse involving Father’s older child, Mother was allowed unsupervised visits and participated in parenting programs, which she completed successfully. No evidence suggested that Mother's presence in the home posed any danger to C.J.G., who is well cared for.
The court also cited Father's failure to comply with a social service plan as a reason for termination, but the statute does not support termination solely for not signing the plan. The critical issue is whether harmful conditions persist, and there was no evidence that Father needed drug or alcohol treatment or a psychological evaluation. Although the plan called for anger management classes, Father had already completed them, and there was no evidence of ongoing issues with anger or law enforcement. The failure to sign the service plan is not a valid ground for termination; it is merely a factor in assessing the underlying issues that need to be addressed.
Furthermore, the court found that the Children’s Division had not effectively assisted Father in changing his circumstances, noting a lack of evidence that they offered him services since 2004, including counseling or visitation with C.J.G. Overall, substantial evidence did not support the termination of Father’s parental rights based on the factors considered under relevant statutory provisions.
The court determined that the child had minimal emotional connections to his Father, who had not kept up with regular visitation or contact. Despite Father's efforts to establish a relationship, the Children’s Division did not facilitate this connection, which is not to be held against him. The Division had initiated a termination of parental rights request in 2003, but the court acknowledged that without offering additional services, it could not assess whether any necessary adjustments could be made by Father. The court found the original judgment that supported the termination of Father’s rights as incorrect, stating that the evidence did not sufficiently justify such a drastic measure, and subsequently reversed the termination.
Additionally, the court addressed Father's claim regarding the Children’s Division's refusal to allow visitation with C.J.G., noting that there was insufficient evidence to suggest that contact would pose substantial risk. The trial court's decision to deny visitation was based on an Order of a Permanency Plan, which favored adoption, but lacked the context of the recent termination ruling. The court remanded the case for further evaluation regarding visitation.
Lastly, the trial court erred in ordering Father to pay half of his court-appointed counsel's fees, as this responsibility lies with the agency responsible for the child's custody. This fee order was reversed. The court acknowledged Father’s counsel's motion for attorney fees on appeal but opted to send this matter back to the trial court for a hearing to determine the reasonableness of the requested fees. The relationship between Father and C.J.G.'s mother, whose rights were terminated, was also discussed as relevant to the court's findings. Evidence presented included details about a voluntary parenting program and the ongoing custody arrangements for C.J.G., whose mother had been reunified despite Father's involvement in highlighting abuse. The reasons for the lack of efforts to reunify Father with C.J.G. remained unclear.
