Termination Of Parental Rights

Definitions.

Section 211.442, RSMo., contains definitions of terms which are applicable to TPR proceedings.

Child" means an individual under 18 years of age.  Section 211.442 (1), RSMo.

"Minor" means any person who has not attained the age of 18 years.  Section 211.442 (2), RSMo.

"Parent" means any one of the following:

a.  A biological parent.

b. The husband of the natural mother at the time the child was conceived (often referred to as the "legal" father or "presumed" father).  For definition of a "presumed" father, see Section 210.822.1, RSMo.

c. A parent by adoption.

d. The mother of the child.

e. The putative father (often referred to as the "alleged" father).  Section 211.442 (3), RSMo.

The statute defining the term "parent" so as to exclude fathers who fail to affirmatively assert paternity and authorizing the waiving of notice to such putative fathers in a termination of parental rights proceeding has been upheld against a challenge that it unconstitutionally denied putative fathers their due process rights. In Interest of J.F., 719 S.W.2d 790 (MO. 1986).

Generally

Termination of parental rights cases may be broadly divided into three categories.  The first is a termination of parental rights by consent.  See Section 211.444, RSMo.  The second is a contested termination of parental rights where the filing of a TPR petition is mandatory unless excused under certain circumstances.  See Sections 211.447.2 and 211.447.3, RSMo.  The third is a contested termination of parental rights where the filing of the TPR petition is discretionary.  See Section 211.447.4, RSMo.

Where the petition for termination of parental rights is filed while a previous version of the TPR statute is in effect, but the hearing does not occur until after a new version of the TPR statute goes into effect, the previous version of Section 211.447 will govern.  In Interest of S.L.J., 3 S.W.3d 902 (Mo.App.S.D.1999).

In order to terminate parental rights based on consent, the court must find two things:

1. That the termination is in the best interests of the child and

2. The parent whose rights are being terminated has consented in writing to the termination of his parental rights.  Section 211.444, RSMo.

In order to terminate parental rights on a contested basis, the court must find at least the following:

1. That termination is in the best interests of the child by a preponderance of evidence and

2. That it appears by clear, cogent and convincing evidence that at least one of the grounds for contested termination of parental rights exists.

In most contested cases, the court shall evaluate and make findings on the factors listed in Section 211.447.6, RSMo.  The court need not make findings on the factors listed in Section 211.447.6, RSMo, when the termination of parental rights is based solely upon Section 211.444 or on Sections 211.447.4(5) or Section 211.447.4(6), RSMo.

The burden of proof in a termination of parental rights case is that there must be clear, cogent and convincing evidence that the specified ground for termination of parental rights exists.  Section 211.447.2, RSMo.  It must be clearly understood, however, that the clear, cogent and convincing evidence standard does not apply to the trial court's finding that termination is in the child's best interest. In Interest of W.S.M., 845 S.W.2d 147 (Mo.App.W.D. 1993); T.S. v. P.S., 797 S.W.2d 837 (Mo.App. 1990); In Interest of J.D.B., 813 S.W.2d 341 (Mo.App.1991); In Interest of J.N.C., 913 S.W.2d 376, 380 (Mo.App.W.D. 1996).

Only one ground for termination of parental rights need be properly pleaded and proven in order to support a judgment.  Thus, where termination of parental rights is granted for both abuse/neglect and for failure to rectify, and where a parent challenges only the failure to rectify, the termination of parental rights would be affirmed because the appellant did not challenge the ground of abuse/neglect.  In Interest of T.F.S., 52 S.W.3d 44 (Mo.App.S.D. 2001).  On the other hand, termination must be granted on a ground actually pleaded, unless the pleadings are deemed amended under the implied consent rule where evidence is admitted without objection.  The implied consent rule, however, only results in the pleadings being amended to conform to the evidence if the evidence bears solely on the unpleaded issue.  Thus, in Matter of E.F.B.D., SD25940 (Mo.App.S.D. 7-8-2004), termination was reversed where the court granted TPR for abuse/neglect, but abandonment was the only ground pleaded.  Evidence of the abuse/neglect, although not objected to by father, was also relevant on the issue of best interests, thus the pleadings were not deemed amended under the implied consent rule.

The court in a TPR case is not deprived of jurisdiction where statutory procedures and time lines are not followed where a parent consents to a foster care placement, consents to jurisdiction and fails to seek enforcement of the mandatory procedures and time lines.  In Interest of P.L.O., SC85120 (MO. en banc 3-30-2004).