(Note: Section numbers correspond to the Juvenile Law Chapter of the Missouri Bench Book so this material may be used as a supplement thereto)

Transcription

1 TABLE OF CASES (Note: Section numbers correspond to the Juvenile Law Chapter of the Missouri Bench Book so this material may be used as a supplement thereto) TABLE OF CONTENTS JUV Section ASFA (NEW 2001) ASFA Permanency Hearings Trial court decision relieving CD of obligation to make reasonable efforts to reunify under Section (1) is affirmed where Mother subjected children to sexual abuse by stepfather when Mother knew or should have known of the abuse. Juvenile Officer v. A.S.M., WD76303 (Mo.App.W.D ). P. Rules Of Evidence Section Generally Manifest injustice occurs under plain error review, despite failure to preserve error, where juvenile is charged with one offense, but is convicted of a different offense which is not a lesser-included offense. In Interest of J.L.T., ED (Mo.App.E.D ). NOTE: Same holding as In Interest of T.P.B., ED (Mo.App.E.D ). Section Hearsay Declarations Sufficient evidence supports adjudication for statutory sodomy first degree despite the fact that victim recanted the allegations at trial where out-of-court statements provided sufficient indicia of reliability, where there was other evidence supporting the allegations. Corroboration is not required despite the fact that victim recanted at trial. In Interest of K.A.R., WD76169 (Mo.App.W.D ). Q. Dismissal To Allow Prosecution Of Juvenile Under General Law As An Adult Section Appeal from Dismissal To Allow Prosecution of Juvenile as an Adult Adult court, after certification, is not bound solely to factual allegations raised, or violations asserted, in the juvenile court petition. Certification procedure is not unconstitutional because: (1) consideration of statutory criteria to determine if juvenile should be certified is not the type of determination understood by the framers of the Bill of Rights to be within the jury s domain; and, (2) certification findings do not increase available punishment, but only determines which court has final jurisdiction over the juvenile. State v. Williams, ED98523 (Mo.App.E.D ). 1

2 R. Hearing On Petition Section Presentation of Evidence Manifest injustice occurs under plain error review, despite failure to preserve error, where juvenile is charged with one offense, but is convicted of a different offense which is not a lesser-included offense. In Interest of J.L.T., ED (Mo.App.E.D ). NOTE: Same holding as In Interest of T.P.B., ED (Mo.App.E.D ). Section Order of Disposition - Generally Trial court decision relieving CD of obligation to make reasonable efforts to reunify under Section (1) is affirmed where Mother subjected children to sexual abuse by stepfather when Mother knew or should have known of the abuse. Juvenile Officer v. A.S.M., WD76303 (Mo.App.W.D ). Section Abuse/Neglect Trial court had no authority to adjudicate the children where petition alleged sexual abuse and medical neglect. The sexual abuse and medical neglect were not proven and the court assumed jurisdiction because parents had a toxic relationship. Adjudication on grounds not pleaded violates Rule as well as fundamental principles of due process. Appellate court did not reach issue of recusal of trial judge, denied without hearing, but noted the ruling was strongly influenced by judge s prior knowledge of and dealings with the family. The court stated that the trial court may not disregard constitutional restrictions imposed by statute or due process. In Interest of Y.S.W. and R.C.W., ED98899 (Mo.App.E.D ). Judgment assuming jurisdiction for abuse/neglect under Section is reversed and remanded where petition was based on admissions of adoptive parents and trial court also relied on hearsay statements of child not alleged in the petition. Adoptive parents did not have notice and an opportunity to defend. Where a different outcome is reasonably probable, prejudice is presumed. In Interest of K.S.-W., WD75753 (Mo.App.W.D ). Section Delinquency Sufficient evidence supports adjudication for statutory sodomy first degree despite the fact that victim recanted the allegations at trial where out-of-court statements provided sufficient indicia of reliability, where there was other evidence supporting the allegations. Corroboration is not required despite the fact that victim recanted at trial. In Interest of K.A.R., WD76169 (Mo.App.W.D ). Section Duration of Commitments 2

3 DYS is authorized to file a petition prior to the end of a commitment, regardless of whether the end is the juvenile s 18 th birthday or some earlier date specified in the original commitment, to request that the commitment continue beyond the original end date. In Interest of K.H., WD75653 (Mo.App.W.D ). U. Appeals Section To Whom Allowed Father's appeal is dismissed as moot where, while appeal is pending after adjudication and dispositional hearings, controversy is extinguished due to return of custody to Mother and termination of jurisdiction after a permanency hearing. In Interest of M.T. and M.T., ED99959 (Mo.App.E.D ). Y. Disqualification Of Judge Section When Ordered Trial court had no authority to adjudicate the children where petition alleged sexual abuse and medical neglect. The sexual abuse and medical neglect were not proven and the court assumed jurisdiction because parents had a toxic relationship. Adjudication on grounds not pleaded violates Rule as well as fundamental principles of due process. Appellate court did not reach issue of recusal of trial judge, denied without hearing, but noted the ruling was strongly influenced by judge s prior knowledge of and dealings with the family. The court stated that the trial court may not disregard constitutional restrictions imposed by statute or due process. In Interest of Y.S.W. and R.C.W., ED98899 (Mo.App.E.D ). where he received the required notice, participated in the case, and did not raise the AB. Termination Of Parental Rights Section Contested Termination of Parental Rights - Generally Finding that there was a likelihood of future harm if parental rights were not terminated was supported by substantial evidence where court considered evidence prior to assumption of jurisdiction, evidence which lead to assumption of jurisdiction and evidence of mother's actions while the case was pending. Such a 3

4 finding need not be explicitly stated by an expert or by any other witness. In Interest of A.A.R. and A.N.R., SD32873 and SD32874 (Mo.App.S.D ). Section Abandonment (Contested Ground No. 1) Section Requisite Intent for Abandonment TPR for neglect and adoption without consent is affirmed where Mother failed to provide for child from birth, had no contact for years and showed no intent to continue the parent-child relationship. TPR is in the best interests of child as there was no emotional bond, no contact for years, only token support after remand, Mother never sought services from the state, Mother was disinterested in child and where Mother is a felon subject to deportation. Adoption of C.M., SD32228 (Mo.App.S.D ). Termination of parental rights for abandonment is not supported by substantial evidence because mother actively concealed the child's whereabouts for 3 1/2 years, father was not able to make arrangements to visit or communicate with the child, and father attempted to make provisions for parental support. In Interest of G.E.R., WD77128 (Mo.App.W.D ). Section Termination of Parental Rights for Abuse or Neglect (Contested Ground No. 2) Finding that there was a likelihood of future harm if parental rights were not terminated was supported by substantial evidence where court considered evidence prior to assumption of jurisdiction, evidence which lead to assumption of jurisdiction and evidence of mother's actions while the case was pending. Such a finding need not be explicitly stated by an expert or by any other witness. In Interest of A.A.R. and A.N.R., SD32873 and SD32874 (Mo.App.S.D ). Section Mental Condition/Chemical Dependency - Sufficiency of Evidence TPR for abuse/neglect, failure to rectify and parental unfitness reversed. Evidence of mental illness was three years old at time of trial. Mother provided in-kind support and also received a letter from Social Services stating her case was closed. In Interest of Q.A.H., WD75786 (Mo.App.W.D ). Termination of Mother s parental rights for abuse/neglect on aggravating factor of mental condition affirmed despite testimony of Mother s expert witnesses where the trial court did not find their testimony credible. Mother s experts relied on selfreports by Mother. Parent aides, on the other hand, worked with Mother on a regular basis. In Interest of Q.A.H., SC93677 (Mo.banc ). Section Severe or Recurrent Abuse/Repeated or Continuous Neglect - Sufficiency of Evidence 4

5 TPR for abuse/neglect, failure to rectify and parental unfitness reversed. Evidence of mental illness was three years old at time of trial. Mother provided in-kind support and also received a letter from Social Services stating her case was closed. In Interest of Q.A.H., WD75786 (Mo.App.W.D ). TPR for neglect and adoption without consent is affirmed where Mother failed to provide for child from birth, had no contact for years and showed no intent to continue the parent-child relationship. TPR is in the best interests of child as there was no emotional bond, no contact for years, only token support after remand, Mother never sought services from the state, Mother was disinterested in child and where Mother is a felon subject to deportation. Adoption of C.M., SD32228 (Mo.App.S.D ). where he received the required notice, participated in the case, and did not raise the Termination of Father s parental rights for abuse/neglect on aggravating factor of neglect affirmed where Father never established a residence, could not provide for the children, failed to support the children, and broke so many promises that the children refused to speak to Father any further. TPR was in best interests of children where there was a lack of emotional ties, no contact, no support and where Father was disinterested in the children. In Interest of J.A.R., D.K.R. and A.E.R., SC93649 (Mo.banc ). Section Failure to Rectify (Contested Ground No. 3) Finding that there was a likelihood of future harm if parental rights were not terminated was supported by substantial evidence where court considered evidence prior to assumption of jurisdiction, evidence which lead to assumption of jurisdiction and evidence of mother's actions while the case was pending. Such a finding need not be explicitly stated by an expert or by any other witness. In Interest of A.A.R. and A.N.R., SD32873 and SD32874 (Mo.App.S.D ). Termination of mother's parental rights for failure to rectify affirmed where conditions which led to jurisdiction still persist, and where there is both little likelihood of a remedy allowing reunification and continuation of the parent/child 5

6 relationship diminishes the child's prospects for early permanency. There were adequate findings on the aggravating factors including failure to comply with the service agreement, failure of reunification efforts and chemical dependency. TPR was in the child's best interests where, although there were emotional ties and a bond, mother failed to maintain regular visitation, failed to provide support, and additional services were unlikely to result in reunification. Mother's disinterest and lack of commitment was adequately demonstrated by her repeated failure to address her drug issues. In Interest of S.Y.B.G., ED (Mo.App.E.D ). Section Mental Condition/Chemical Dependency Sufficiency of Evidence TPR for abuse/neglect, failure to rectify and parental unfitness reversed. Evidence of mental illness was three years old at time of trial. Mother provided in-kind support and also received a letter from Social Services stating her case was closed. In Interest of Q.A.H., WD75786 (Mo.App.W.D ). Termination for failure to rectify affirmed where Mother suffered from serious and long-standing mental illness not likely to be remedied in the future. TPR is in best interests of Child where Mother had been unable to establish a bond with Child, did not provide support and where all available services had been provided. In Interest of T.J.P., Jr., WD76551 (Mo.App.W.D ). Termination of Father s parental rights for failure to rectify affirmed where Child was under the jurisdiction of the court for greater than one year, where Father failed to complete service plans, where Father had a mental condition which was permanent and which prevented Father from providing necessary care for Child. In addition, assistance Father received from a niece was not enough to overcome Father s problems, and Father was unable, even when with a trained parent aide, to provide proper care for Child. TPR was in the best interests of Child even where the trial court found some statutory factors in Father s favor. In Interest of D.J.G., SD32887 (Mo.App.S.D ). Termination of mother's parental rights for failure to rectify affirmed where conditions which led to jurisdiction still persist, and where there is both little likelihood of a remedy allowing reunification and continuation of the parent/child relationship diminishes the child's prospects for early permanency. There were adequate findings on the aggravating factors including failure to comply with the service agreement, failure of reunification efforts and chemical dependency. TPR was in the child's best interests where, although there were emotional ties and a bond, mother failed to maintain regular visitation, failed to provide support, and additional services were unlikely to result in reunification. Mother's disinterest and lack of commitment was adequately demonstrated by her repeated failure to address her drug issues. In Interest of S.Y.B.G., ED (Mo.App.E.D ). Section Social Service Plan/Success or Failure of Efforts 6

7 Termination of Father s parental rights for failure to rectify affirmed where Child was under the jurisdiction of the court for greater than one year, where Father failed to complete service plans, where Father had a mental condition which was permanent and which prevented Father from providing necessary care for Child. In addition, assistance Father received from a niece was not enough to overcome Father s problems, and Father was unable, even when with a trained parent aide, to provide proper care for Child. TPR was in the best interests of Child even where the trial court found some statutory factors in Father s favor. In Interest of D.J.G., SD32887 (Mo.App.S.D ). Termination of mother's parental rights for failure to rectify affirmed where conditions which led to jurisdiction still persist, and where there is both little likelihood of a remedy allowing reunification and continuation of the parent/child relationship diminishes the child's prospects for early permanency. There were adequate findings on the aggravating factors including failure to comply with the service agreement, failure of reunification efforts and chemical dependency. TPR was in the child's best interests where, although there were emotional ties and a bond, mother failed to maintain regular visitation, failed to provide support, and additional services were unlikely to result in reunification. Mother's disinterest and lack of commitment was adequately demonstrated by her repeated failure to address her drug issues. In Interest of S.Y.B.G., ED (Mo.App.E.D ). Section Termination of Parental Rights for Parental Unfitness (Contested Ground No. 6) TPR for abuse/neglect, failure to rectify and parental unfitness reversed. Evidence of mental illness was three years old at time of trial. Mother provided in-kind support and also received a letter from Social Services stating her case was closed. In Interest of Q.A.H., WD75786 (Mo.App.W.D ). Termination of incarcerated Father s parental rights for parental unfitness affirmed where he failed to complete many court-ordered services, where he had never had contact with Child, where his release from prison was uncertain because of pending charges, and where there was no bond between Father and Child, and it was impossible to determine when or if a bond could be established. In Interest of J.D.P., ED99526 (Mo.App.E.D ). The presumption of parental unfitness was not rebutted by Mother and TPR is affirmed for parental unfitness where Mother, while having made some progress, continued to suffer from various mental issues, could not provide a safe environment for children, and continued to have issues with boundaries, anger management and was unable to supervise the children during visits. In Interest of D.T.L. and C.J.L., SD32759 and SD32760 (Mo.App.S.D ). Section Section Factors 7

8 Where: (1) the rights of the Fathers were not terminated; (2) the children were bonded to Mother; (3) Mother had provided support; and, (4) there was no evidence that continuation of the relationship between Mother and the children would be detrimental to the children, TPR is not in the best interests of the children. In Interest of C.M.H. and S.F.H., SD32472 and SD32474 (Mo.App.S.D ). Termination for failure to rectify affirmed where Mother suffered from serious and long-standing mental illness not likely to be remedied in the future. TPR is in best interests of Child where Mother had been unable to establish a bond with Child, did not provide support and where all available services had been provided. In Interest of T.J.P., Jr., WD76551 (Mo.App.W.D ). Termination of Father s parental rights for abuse/neglect on aggravating factor of neglect affirmed where Father never established a residence, could not provide for the children, failed to support the children, and broke so many promises that the children refused to speak to Father any further. TPR was in best interests of children where there was a lack of emotional ties, no contact, no support and where Father was disinterested in the children. In Interest of J.A.R., D.K.R. and A.E.R., SC93649 (Mo.banc ). Termination of Father s parental rights for failure to rectify affirmed where Child was under the jurisdiction of the court for greater than one year, where Father failed to complete service plans, where Father had a mental condition which was permanent and which prevented Father from providing necessary care for Child. In addition, assistance Father received from a niece was not enough to overcome Father s problems, and Father was unable, even when with a trained parent aide, to provide proper care for Child. TPR was in the best interests of Child even where the trial court found some statutory factors in Father s favor. In Interest of D.J.G., SD32887 (Mo.App.S.D ). Termination of mother's parental rights for failure to rectify affirmed where conditions which led to jurisdiction still persist, and where there is both little likelihood of a remedy allowing reunification and continuation of the parent/child relationship diminishes the child's prospects for early permanency. There were adequate findings on the aggravating factors including failure to comply with the service agreement, failure of reunification efforts and chemical dependency. TPR was in the child's best interests where, although there were emotional ties and a bond, mother failed to maintain regular visitation, failed to provide support, and additional services were unlikely to result in reunification. Mother's disinterest and lack of commitment was adequately demonstrated by her repeated failure to address her drug issues. In Interest of S.Y.B.G., ED (Mo.App.E.D ). Section Procedure 8

9 where he received the required notice, participated in the case, and did not raise the Section Jurisdiction/Venue where he received the required notice, participated in the case, and did not raise the Section Juvenile Officer Meeting with the Court/Social Study and Investigation where he received the required notice, participated in the case, and did not raise the Mother claims that the trial court erred by not holding the trial within 30 days of the meeting required by Section , as required by Section Mother raises this claim for the first time on appeal. The alleged error is waived. Adoption affirmed. In re the Adoption of J.A.D., B.L.D., J.D.D., S.R.N. and B.T.N., SD32724 (Mo.App.S.D ). 9

10 Section Dispositional Hearing where he received the required notice, participated in the case, and did not raise the Mother claims that the trial court erred by not holding the trial within 30 days of the meeting required by Section , as required by Section Mother raises this claim for the first time on appeal. The alleged error is waived. Adoption affirmed. In re the Adoption of J.A.D., B.L.D., J.D.D., S.R.N. and B.T.N., SD32724 (Mo.App.S.D ). Section Finality of Order Trial court is divested of jurisdiction unless a party timely files an authorized after trial motion. Where Appellant's after trial motion was untimely, trial court's "judgment and order" denying said motion must be vacated as it was void. In Interest of K.J.L., S.L.L., SD32843 (Mo.App.S.D ). ADOPTION Where Indian father agreed to relinquish his rights prior to birth and thereafter provided no support during the remainder of the pregnancy or the first four months of the child s life, the state court s denial of an adoption was reversed because the heightened showing provision and the remedial services provision of the Indian Child Welfare Act (ICWA) do not apply to an Indian father who has never had custody and who abandoned the child prior to birth. In addition, the adoptive placement preferences of the ICWA do not apply as there was no competing petition to adopt the Indian child. Adoptive Couple v. Baby Girl, (U.S ). Adoption without Mother s consent affirmed where Mother abandoned and neglected child for more than six months. Concurrent jurisdiction doctrine was not violated by juvenile court in granting adoption where probate court had already granted guardianship because the two judgments were not inconsistent. Adoption eliminated the need for the guardianship and custody was not transferred away from guardians. In re: J.M.J., WD75852 (Mo.App.W.D ). 10

11 Consent to adoption is not required for all adoptees, age 14 and older, who are without sufficient mental capacity to consent to the adoption. In such cases, the trial court should consider the fitness and propriety of the adoption. Matter of DeBrodie, WD75853 (Mo.App.W.D ). TPR for neglect and adoption without consent is affirmed where Mother failed to provide for child from birth, had no contact for years and showed no intent to continue the parent-child relationship. TPR is in the best interests of child as there was no emotional bond, no contact for years, only token support after remand, Mother never sought services from the state, Mother was disinterested in child and where Mother is a felon subject to deportation. Adoption of C.M., SD32228 (Mo.App.S.D ). In an adoption case, although adoption statutes are strictly construed, the degree of compliance is substantial, not literal. Thus, failure to formally offer reports into evidence does not require reversal where the record shows the investigation and post-placement assessments were considered by the court. The fact that the court received sufficient evidence by testimony does not require reversal where the court did not select the provider or order preparation of the reports. Adoption without consent of Mother for abandonment and neglect is affirmed where Mother did not visit after 2006, had infrequent telephone contact and provided infrequent gifts. In the Matter of: T.S.D., ED99499 (Mo.App.E.D ). RELEASE OF HOTLINE RECORDS Trial court not permitted to order Children s Division to release names of reporters of unsubstantiated hotline calls. State ex rel. Dept. of Social Services v. Tucker, SC93187 (Mo.banc ). UNIFORM PARENTAGE ACT Dismissal of Mother's petition under Section is affirmed as Mother did not allege that she was not the biological parent. Cooper v. Cooper, SD32236 (Mo.App.S.D ). JUDICIAL REVIEW OF CHILD ABUSE AND NEGLECT REVIEW BOARD Trial court did not have authority to prevent Children s Division from adding perpetrator s name to child abuse/neglect registry despite the fact that the Division failed to comply with statute providing that agency shall notify alleged perpetrator of results of investigation within 90 days of the hotline report. Frye v. Levy, SC93471 (Mo.banc ); Williams v. D.S.S., SC93653 (Mo.banc ). 11