A. Termination of Parental Rights by Consent
Under Section 211.444 RSMo of the Missouri Juvenile Division, in order to terminate parental rights based on the consent, the court must find (1) that the termination is in the best interest of the child; and (2) the parent whose rights are being terminated has consented in writing to the termination of his/her parental rights.3 In regards to adoption, the written consent will only be deemed valid and effective after the child is at least 48 hours old.4 The consent must be knowingly, voluntarily, and intelligently given. Any deviation from this standard will be determined by the specific facts. The adoption process still must comply with the requirements set forth in Section 453.030, RSMo. Section 453.030 contains a review and acceptance procedure. The Section states that consent “may be withdrawn any time until it has been reviewed and accepted by a judge.”5 Additionally, withdraw of consent does not need to be in writing but must be specifically stated.
B. Contested Termination of Parental Rights
The Supreme Court of Missouri addressed contested termination of Parental Rights in the case of In re K.A.W. The Supreme Court stated, “Rights without consent requires proof of at least one ground of clear, cogent and convincing evidence and, in addition, proof by preponderance of the evidence that termination is in the best interest of the child.”6 The Supreme Court has imposed requirements for the trial court to determine if parental rights should be terminated. “The acts and conditions of the parent justifying termination must be analyzed for: (1) whether there is sufficient reason to believe the acts or conditions had an impact on the child; (2) whether the “acts or conditions … are severe enough to constitute abuse or neglect”; and (3) whether there is an indication of likelihood of future harm to the child (See, In re K.A.W., 138 S.W.3d 1, 12 (Mo. Banc 2004) and In re B.C.K., 103 S.W.3d 319 (Mo. App. S.D. 2003).7
1. Mandatory Filing of Termination of Parental Rights
The Federal government enacted the Adoption and Safe Families Act of 1997, Missouri enacted § 211.447.2, which states that in certain situations a filing for a petition to terminate parental rights are mandatory.8 There are two bases for filing a mandatory petition of terminating parental rights: (1) the parent abandons an infant; or (2) where the parent has aided, attempted, or actually committed a serious crime against the child or another child of the parent.9
2. Discretionary Filing of Termination of Parental Rights
A petition for the termination of parental rights may be filed for one or more reasons pursuant to § 211.447.4, RSMo Supp. 2005. Here is a list of some reason:
(a) Abandonment: the parent left the child without support, communication with the parent, and/or failed to visit the child. The petition requires at least a six month period of abandonment.
(b) Abuse/Neglect: court may terminate parental rights if the child has been abused or neglected. Termination of rights will not be allowed unless evidence of one out of the four aggravating factors is proven. The aggravating factors are: (1) mental condition, (2) chemical dependency, (3) severe or reoccurring abuse, and (4) repeated or continuous neglect.10 These aggravating factors, on their own, qualify to terminate parental rights
(c) Failure to Rectify: “The court may terminate parental rights for failure to rectify where the child has been under the jurisdiction of the court for a period of one year”.11
There must be evidence to show the same conditions that led to the removal are still present.
(d) Felony Convictions: A parent’s parental rights may be terminated if the parent has committed a felony under chapter 566, RSMo, sexual offenses.
1. In all cases involving the termination of parental rights, placement, or adoption of a child, whether voluntary or contested by any person or agency, the court shall, consistent with due process, expedite the termination, placement, or adoption proceeding by entering such scheduling orders as are necessary to ensure that the case is not delayed, and such case shall be given priority in setting a final hearing of the proceeding and shall be heard at the earliest possible date over other civil litigation, other than children’s division child protection cases.
2. In all cases as specified in subsection 1 of this section which are appealed from the decision of a trial court:
(1) The transcript from the prior court proceeding shall be provided to the appellate court no later than thirty days from the date the appeal is filed; and
(2) The appellate court shall, consistent with its rules, expedite the contested termination of parental rights or adoption case by entering such scheduling orders as are necessary to ensure that a ruling will be entered within thirty days of the close of oral arguments, and such case shall be given priority over all other civil litigation, other than children’s division child protection cases, in reaching a determination on the status of the termination of parental rights or of the adoption; and
(3) In no event shall the court permit more than one request for an extension by either party.
3. It is the intent of the general assembly that the permanency of the placement of a child who is the subject of a termination of parental rights proceeding, a placement proceeding, or an adoption proceeding not be delayed any longer than is absolutely necessary consistent with the rights of all parties, but that the rights of the child to permanency at the earliest possible date be given priority over all other civil litigation other than children’s division child protection cases.12
D. Relevant Case Law
In re C.M.B.R.,13 a natural mother, who is a Guatemalan citizen, appeals the circuit court’s judgment terminating her parental rights and granting the adoption of her son to a Carthage couple. In a 4-3 decision written by the Supreme Court of Missouri affirms the portion of the judgment that also terminated the natural father’s parental rights, as this portion was not challenged. 14 As to the termination of the mother’s parental rights, the circuit court failed to comply with investigation and reporting requirements mandated by state law.15 This failure resulted in manifest injustice requiring reversal of the termination of the mother’s parental rights and the granting of the adoption.16 Because the adoptive parents offered sufficient evidence at trial to support their claim that the mother abandoned the child, the appropriate remedy is to remand (send back) the case to the circuit court for a new trial.17
Further, the Missouri Supreme Court pointed out the termination of parental rights is governed by Chapter 211 of the Missouri Revised Statutes, while adoptions are governed by Chapter 453 thereof.18 “The legislature has created different rules for construing the provisions of chapter 211 and chapter 453. Chapter 453, which governs the procedures for adoption and foster care of Missouri children, has an express role of statutory construction.19 Section 453.005 states that the chapter is to be construed ‘to promote the best interests and welfare of the child in recognition of the entitlement of the child to a permanent and stable home.”20 Provisions in chapter 211 govern the termination of parental rights. In 211.443, the legislature explicitly stated how the termination of parental rights provisions of chapter 211 should be construed.21 Sections 211.455, 453.070, and 453.076 require investigation and reporting to be made prior to a hearing for either termination of parental rights or adoption. These deficiencies compel a remand for completion of same before any disposition of the claims for relief.22
In re Adoption of N.L.B. v. Lentz,23 the case involves a contested adoption in which the natural father claims that the trial court wrongfully entered a judgment terminating his parental rights and approving an adoption. Father never consented to adoption and Father and Mother had later signed “acknowledgment of paternity” form pursuant to Section 193.215.24 Father brought his appeal directly to this Court contesting the validity of one of the adoption statutes in question, RSMo 453.030, when the person sought to be adopted is under the age of eighteen years, the written consent of the following persons shall be required and filed in and made a part of the files and record of the proceeding:
(1) The mother of the child; and
(2) Any man who:
(a) Is presumed to be the father pursuant to the subdivisions (1), (2), (3) or (5) of subsection 1 of section 210.822, RSMo; or
(b) Has filed an action to establish his paternity in a court of competent jurisdiction no later than fifteen days after the birth of the child; or
(c) Filed with the putative father registry pursuant to section 192.016, RSMo, a notice of intent to claim paternity or an acknowledgment of paternity either prior to or within fifteen days after the child’s birth, and has filed an action to establish his paternity in a court of competent jurisdiction no later than fifteen days after the birth of the child; or
(3) The child’s current adoptive parents or other legally recognized mother and father.25
In the end, the Missouri Supreme Court held that the trial court’s rulings were made under the mistaken belief that putative fathers who do not fall under the three categories in 210.823 were otherwise precluded from challenging an adoption.26 In over- turning the decision of the trial court, the Missouri Supreme Court found that: “[F]ather timely intervened in the adoption proceeding.”27 He had standing to do so by virtue of the fact that he and the mother had signed an acknowledgment of paternity form pursuant to section 193.215 which, under section 210.823, shall be considered a legal finding of paternity. In fact, his paternity was essentially uncontested because the adoptive parents affirmatively alleged in their second amended petition that father is indeed the natural father.28 Furthermore, he had never consented to the adoption or to the termination of his parental rights.29 As noted during the first part of the bifurcated trial, the court restricted the evidence to the question of whether father fell within one of the three categories of fathers and putative fathers from whom consent to the adoption was required.30 This was found to be in error.31
Again, it was held that these rulings were made under the mistaken belief that those putative fathers who did not fall within one of the three categories were precluded from otherwise challenging the adoption.32 The trial court should instead have permitted all evidence pertaining to the ultimate and overriding ground for adoption required in section 453.030-“the welfare of the person sought to be adopted.”33 In that regard, the notion of the welfare of the person sought to be adopted-the child-is informed by the fundamental proposition and presumption that maintaining the natural parent-child relationship is in the best interests of the child.34
1 RSMo. § 211.444 (2014).
2 Shawn R. McCarver, Termination of Parental Rights in Missouri – Part 2 Recent Court Decisions Arguably Make Terminations More Difficult, 62 J. Mo. B. 138 (2006).
3 RSMo. § 211.444 (2014).
4 Shawn R. McCarver, Termination of Parental Rights in Missouri – Part 2 Recent Court Decisions Arguably Make Terminations More Difficult, 62 J. Mo. B. 138 (2006).
5 RSMo § 453.030, (2014).
6 In re K.A.W., 138 S.W.3d 1, 12 (Mo. banc 2004).
7 Shawn R. McCarver, Termination of Parental Rights in Missouri – Part 2 Recent Court Decisions Arguably Make Terminations More Difficult, 62 J. Mo. B. 138, 139 (2006).
8 Id. at 140.
10 Id. at 141.
11 Id. at 143.
12 RSMo. §453.011.1 (2014).
13 In re C.M.B.R., 332 S.W.3d 793, 800-805 (Mo. 2011). 14 Id. at 822.
18 Id. at 807.
22 Id. at 823.
23 In re Adoption of N.L.B. v. Lentz, 212 S.W.3d 123 (Mo.2007). 24 Id. at 124.
25 RSMo. §453.030 (2014). 26 Id. at 128.