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Chapter 2

Termination of Parental Rights (TPR)
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Section 211.442, RSMo contains definitions of terms that are applicable to TPR proceedings.

“Child" means an individual less than 18 years of age.

"Minor" means any person who has not attained the age of 18 years.

"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). Cited by D.L.G. v. E.L.S., 774 S.W.2d 477 (Mo. 1989). It is definitely the better practice to serve a putative father even if the putative father has not affirmatively asserted paternity. See Section 1.194 and cases discussed there under.

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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). Followed by In re L.N.D., 219 S.W.3d 820 (Mo. App. S.D. 2007). Distinguished by C.J.g v. D.G.P., 75 S.W.3d 794 (Mo. App. W.D. 2002).

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.

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, and

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

In contested cases once statutory grounds for the termination have been met, the court shall evaluate and make findings on the factors listed in Section 211.447.7, RSMo. These factors are generally referred to as “best interests” findings. The Court’s findings requiring these factors must be supported by a preponderance of the evidence. The court need not make findings on the factors when the termination of parental rights is based solely upon Section 211.447.5(5) (child conceived as a result of rape) or Section 211.447.5(6), RSMo (parent determined to be unfit).

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 211.447.6, RSMo. It must be understood that the trial court's finding that termination is in the child's best interest must be supported by a preponderance of the evidence. In Interest of W.S.M., 845 S.W.2d 147 (Mo. App. W.D. 1993). Followed by In the Interest of D.F.P., 981 S.W.2d 663 (Mo. App. S.D. 1998). Cited by Mo. Dep't of Soc. Servs. v. C.B.G. (In the Interest of C.J.G.), 358 S.W.3d 549 (Mo. App. S.D. 2012); T.S. v. P.S., 797 S.W.2d 837 (Mo. App. 1990). Followed by In re B.R.M., 912 S.W.2d 86 (Mo. App. W.D. 1995). Cited by A.A.R. v. B.R., 71 S.W.3d 626 (Mo. App. W.D. 2002); In Interest of J.D.B., 813 S.W.2d 341 (Mo. App. 1991). Cited by G.C. v. Greene County Juvenile Office (In the Interest of K.L.C.), 332 S.W.3d 330, 343 (Mo. App. S.D. 2011); In Interest of J.N.C., 913 S.W.2d 376, 380 (Mo. App. W.D. 1996). Cited by In the Interest of B.T., 218 S.W.3d 575 (Mo. App. E.D. 2007).

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The juvenile court in a Chapter 211 TPR proceeding or the court before which a Chapter 453 adoption proceeding is pending may terminate the parental rights of a parent to a child if it finds that the termination is:

1. In the best interests of the child, and

2. That the parent whose rights will be terminated has consented in writing to the termination of his parental rights. Section 211.444.1, RSMo.

A consent form in a Chapter 211 termination of parental rights by consent under Section 211.444, RSMo, must:

1. Be in writing;

2. Be signed before or after institution of the proceedings;

3. The signature must be acknowledged by a notary or witnessed by two adult witnesses who are not the adoptive parents;

4. The notary or witnesses shall "verify the identity of the person consenting;"

5. The consent is valid and effective only after the child is at least 48 hours old;

6. The consent must comply with the "other requirements of Section 453.030, RSMo."

Although somewhat unclear, it appears that a consent used in a Chapter 211 termination of parental rights must also comply with the requirements for a consent under Section 453.030, RSMo relating to consents in adoptions. Section 453.030, RSMo contains a set of requirements for the consent to be signed by the biological mother, and a slightly different set of requirements for all other adoption consent forms. All consents, except that of the mother, must be:

1. In writing;

2. Signed before or after commencement of the proceedings;

3. The signature must be acknowledged by a notary or witnessed by two adult witnesses who are not the adoptive parents or not an attorney representing a party to the adoption proceeding;

4. The notary and witnesses must "verify the identity" of the person signing the form; and

5. The consent form must contain certain statements as set forth in Section 453.030.9, RSMo.

*219 *2226 The mother's consent in a Chapter 453 adoption must be:

1. In writing;
2, Not be executed before the child is 48 hours old;
3. Signed in front of a judge, notary or two adult witnesses who are not the adoptive parents and are not an attorney representing a party to the adoption proceeding;
4. That the notary or witnesses "verify the identity" of the person signing the form; and
5. That the form contains certain required statements contained in Section 453.030.9, RSMo.

Note that with reference to “mother” only, the witnesses are required to “determine and certify” that mother’s consent was knowingly and freely given.

It is suggested that the consent form be set forth in affidavit format, that it include waiver of counsel provisions (where appropriate), and provisions related to compliance with the Interstate Compact on the Placement of Children, the Indian Child Welfare Act, the Uniform Child Custody jurisdiction Act and the Soldiers and Sailors Civil Relief Act. It is unclear how the notary or witnesses are supposed to "verify the identity" of the person signing the form, however, it is suggested that two forms of photo I.D. or some similar method be utilized. In addition, the consent form should contain an affidavit to be signed by the witnesses related to the "determine and certify" requirements of the statute. Further, there should be statements in the notarial certificate concerning the verification of identity, the date and time of signing and the other new requirements contained herein.

It is suggested that, although consent forms may be different for the parents in a termination of parental rights proceeding and that a differentiation is made between a mother and other persons in a Chapter 453 adoption, that one unified consent form be adopted for use in Chapter 211 TPR proceedings as well as Chapter 453 adoptions, and such form should comply with the requirements of Chapter 211 as well as Chapter 453.

NOTE: 453.030.8, RSMo required that the Department of Social Services create a consent form that would comply with the statutory provisions set out herein and such a form has been developed and is available for use.

A finding that a parent knowingly, voluntarily and intelligently consented to termination of her parental rights was supported by evidence that the parent told her psychotherapist that she wanted to give her children up for adoption because she recognized that she could not provide for them and that the children were too great of a strain on her. In Interest of A.M.K., 723 S.W.2d 50 (Mo. App. E.D. 1986). Cited by E.P. v. A.M. (In the Interest of Baby Girl P), 159 S.W.3d 862 (Mo. App. W.D. 2005). Withdrawal of consent to termination of parental rights is within the trial court's discretion where the crux of the contention regarding consent is that a parent has changed her mind. Id.

*220 *2227 Where a foster mother testified that she had discussed her philosophy that an adopted child should be available for visits after adoption, but informed the father that he would have no parental rights after the termination, the father's consent to termination of his parental rights was valid despite his contention that he signed under a false impression based on the conversation with the foster mother. In Interest of R.R.T., 744 S.W.2d 829 (Mo. App. W.D. 1988). Cited by C.M.S. v. Greene County Juvenile Office (In re L.R.S.), 213 S.W.3d 161 (Mo. App. S.D. 2007).

Even though a consent to termination of parental rights has been signed knowingly, voluntarily and intelligently, parental rights may not be terminated unless it is in the best interests of the child. Thus, where parental rights are sought to be terminated voluntarily in order that former husband (who had adopted wife's child) could be relieved of his financial obligations imposed on him by a dissolution of marriage decree, and it was not in the best interests of the child that support payments stop, then parental rights may not be terminated despite the fact that former husband had consented. In Interest of B.L.G., 731 S.W.2d 492 (Mo. App. S.D. 1987). Explained by In re in Interest of R.A.S., 826 S.W.2d 397 (Mo. App. W.D. 1992). Distinguished by Taylor v. Taylor, 47 S.W.3d 377 (Mo. App. W.D. 2001). Evidence as to why the former husband adopted the child is inadmissible. Id. (Former husband alleged he had been coerced into adopting wife's child.) See also In Interest of R.A.S., 826 S.W.2d 397 (Mo. App. W.D. 1992). Distinguished by Taylor v. Taylor, 47 S.W.3d 377 (Mo. App. W.D. 2001).

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The power given the juvenile court to terminate parental rights is purely statutory and, without the TPR legislation, the power of the juvenile court to terminate parental rights would not exist. In Interest of W.F.J., 648 S.W.2d 210 (Mo. App. W.D. 1983). Followed by In Interest of D.L.H., 660 S.W.2d 471 (Mo. App. W.D. 1983). Cited by C.L.P. v. Pate, 673 S.W.2d 18 (Mo. 1984). Distinguished by In re I.M.B., 897 S.W.2d 146 (Mo. App. W.D. 1995). Accordingly, termination of parental rights demands strict and literal compliance with the statutory authority from which the power is derived, and whoever seeks to terminate parental rights must carry the full burden of proof. Id. But see In Interest of P.J.M., 926 S.W.2d 223 (Mo. App E.D. 1996). No further treatment.

Both the rule favoring parental custody and the desire for family reunification are superseded by concern for the child's best interests and welfare. In Interest of L.A.P., 640 S.W.2d 511 (Mo. App. S.D. 1982). Criticized by In re M.A.J., 998 S.W.2d 177 (Mo. App. W.D. 1999). Cited by In the Interest of C.F., 340 S.W.3d 296, 301 (Mo. App. E.D. 2011).

Parental rights may not be terminated except on clear, cogent and convincing evidence. S.K.L. v. Smith, 480 S.W.2d 119 (Mo. App. 1972). Followed by State ex rel. Brault v. Kyser, 562 S.W.2d 172, 174 (Mo. Ct. App. 1978). Distinguished by In Interest of R.E.M., 712 S.W.2d 398 (Mo. App. W.D. 1986). Cited by W.N.W. v. Greene County Juvenile Office (In re N.J.B.), 327 S.W.3d 533 (Mo. App. S.D. 2010). In addition, parental rights may not be terminated on the ground that the children would be better off with someone else. Id.

The juvenile court in a Chapter 211 TPR proceeding or the court before which a Chapter 453 adoption is pending may terminate the rights of a parent to a child if:

1. The court finds that termination is in the best interests of the child, and
2. At least one of the statutory grounds listed in Section 211.447, RSMo is proven to exist by clear, cogent and convincing evidence.

In most contested termination of parental rights cases, the court must also make additional findings on the factors listed in Section 211.447.7, RSMo. These factors are generally referred to as “best interest” findings. The court’s findings regarding these factors must be supported by a preponderance of the evidence. Consideration of the factors listed in Section 211.447.7, RSMo (conception as a consequence of rape) is not required where the termination is based solely upon Sections 211.447.5(5) or 211.447.5(6), RSMo (parental unfitness).

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A petition to terminate parental rights shall be filed by the juvenile officer or Children’s Division where any one of the following three grounds are present:

1. Where it is in the best interests of the child and where there is information available to the juvenile officer or Children’s Division which establishes that the child has been in foster care for at least 15 of the most recent 22 months. This provision has been determined to a “triggering” device for the filing of a termination of parental rights petition and does not establish an independent ground for TPR. In re M.D.R., 124 S.W.3d 469 (Mo. 2004).

2. Where it is in the best interests of the child and a court of competent jurisdiction has determined the child to be an "abandoned infant." For purposes of this ground "infant" means any child one year of age or under at the time of the filing of the petition. Said infant has been abandoned if: (1) the parent has left the child under circumstances that the identity of the child was unknown and could not be ascertained, despite diligent searching, and the parent has not come forward to claim the child; or (2) the parent has, without good cause, left the child without any provision for parental support and without making arrangements to visit or communicate with the child, although able to do so. Termination based upon this ground must also include a consideration of the best interest factors listed in Section 211.447.7.

Note that this is now the only method to terminate parental rights where a child one year of age or under has been abandoned. Note further that “a court of competent jurisdiction” must make a determination that the child is an abandoned infant before an order to TPR can be entered. It should also be noted that there is no longer a particular period of abandonment necessary to establish abandonment of a child one year of age or under.

*223 For abandonment related to a child one year of age or under, it is suggested that the juvenile officer file a petition under Section 211.031, RSMo wherein there can be an adjudication of abandonment. The relevant language of the petition should track the jurisdictional language of Section 211.031, RSMo as well as the abandonment language of Section 211.447.2(2), RSMo. Once an adjudication has occurred, then a termination of parental rights petition may be filed on this ground.

*218 *2230 Some have suggested that termination under this ground should be filed in a two count petition with count one being the Section 211.031, RSMo adjudication count to obtain jurisdiction and the determination by a court of competent jurisdiction and that count two would be for the termination of parental rights.

3. Where it is in the best interests of the child and a court of competent jurisdiction has determined that the parent has aided or abetted, attempted, conspired or solicited to commit, or actually committed, the murder or voluntary manslaughter of another child of the parent or the parent has committed a felony assault that resulted in serious bodily injury to the child or to another child of the parent. Termination on this ground requires consideration of the Section 211.447.7 factors.

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If one or more of the aforesaid grounds exists for termination of parental rights, the juvenile officer or Children’s Division may, but is not required to, file a TPR petition if: (1) the child is being cared for by a relative; or (2) there exists a compelling reason for determining that filing such a petition would not be in the best interest of the child, as documented in the permanency plan which shall be made available for court review; or (3) the family of the child has not been provided such services as provided for in sections 211.183, 211.447.4, RSMo.

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The juvenile officer or Children’s Division may file a petition to terminate parental rights where it appears that one or more of the six grounds contained in Section 211.447.5, RSMo exist.

Section 211.447.5, RSMo contains six grounds upon which a contested termination of parental rights may be granted. They are:

1. Abandonment (Section 211.447.5 (1), RSMo)
2. Abuse or Neglect (Section 211.447.5 (2), RSMo)
3. Failure to Rectify (Section 211.447.5 (3), RSMo)
4. Felony Convictions (Section 211.447.5 (4), RSMo)
5. Conception as a result of Forcible Rape (Section 211.447.5 (5), RSMo)
6. Parental Unfitness (Section 211.447.5 (6), RSMo)

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To prove abandonment, it must be proven that:

1. Termination is in the best interests of the child.
2. The child has been abandoned. For purposes of this section, the term "child" means any child over one year of age at the time of filing of the petition.
3. For six months or longer.

The juvenile court shall in addition make findings on the factors listed in Section 211.447.7, RSMo.

Abandonment can be proven in either one of two ways. Section 211.447.5 (1)(a), RSMo requires that the court find that the parent has "left the child under such circumstances that the identity of the child was unknown and could not be ascertained, despite diligent searching, and the parent has not come forward to claim the child."

Alternatively, Section 211.447.5 (1)(b), RSMo provides that abandonment can be shown if the parent has, without good cause, left the child without any provision for parental support and without making arrangements to visit or communicate, although able to do so.

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The statutory period is shown if the abandonment has occurred for a period of six months or longer if the child is over one year of age. Section 211.447.5(1), RSMo. There is no specific statutory period for abandonment of an infant, which is defined as a child "one year of age or under at the time of filing of the petition." Section 211.447.2 (2), RSMo.

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Abandonment is a question of the intent of a parent, to be discovered by examining all evidence of the conduct of the parent. In Interest of B.L.B., 834 S.W.2d 795 (Mo. App. E.D. 1992). Followed by T.M. v. Greene County Juvenile Office (In the Interest of A.Y.M.), 154 S.W.3d 412 (Mo. App. S.D. 2004). Impediments to visitation do not, in and of themselves, excuse the obligation of a parent to provide the child with a continuing relationship. Id. Sufficient evidence of intent to abandon is shown where the mother has only 10 visits in two years with the children, makes approximately six incomplete attempts at drug treatment, successfully completes one drug treatment program, is incarcerated twice while the children are in alternative care and otherwise maintains only token contact and provides little or no support. Juvenile Officer v. S.W.J. (In re J.W.), 11 S.W.3d 699 (Mo. App. W.D. 1999). Followed by R.J.M. v. Phelps County Juvenile Office (In the Interest of L.M.), 322 S.W.3d 564 (Mo. App. S.D. 2010). Sufficient evidence to find willful abandonment is also shown where mother permits the child to live with the future adoptive parents, consents to future adoptive parents being appointed as guardians/conservators, after which mother moves out of state, makes only token efforts to contact the child including a few phone calls and two letters and fails to otherwise communicate with or support the child. In such a case, termination was affirmed and an adoption granted in absence of consent despite the fact that mother did not know the telephone number of the adoptive parents or their address. In Re Adoption of H.M.C., 11 S.W.3d 81 (Mo. App. W.D. 2000), Followed by, Cited in Dissenting opinion by S.M. v. E.M.B.R. (In re C.M.B.R.), 332 S.W.3d 793 (Mo. 2011).

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Although a parent may leave a child in the temporary custody of a third party where there is good cause, a parent must continue to show parental interest and concern for the child. If after the temporary placement, the parent makes only sporadic attempts to communicate and provides only token support, the juvenile court may ignore the evidence that the parent made a proper initial placement in its determination of whether grounds for termination of parental rights exist. In Interest of M.J.A., 826 S.W.2d 890 (Mo. App. S.D. 1992). Followed by A.R. v. D.R., 52 S.W.3d 625, 636 (Mo. App. W.D. 2001). Cited in Dissenting opinion by S.M. v. E.M.B.R. (In re C.M.B.R.), 332 S.W.3d 793 (Mo. 2011). See also In Interest of J.W., 11 S.W.3d 699 (Mo. App. W.D. 1999). Followed by R.J.M. v. Phelps County Juvenile Office (In the Interest of L.M.), 322 S.W.3d 564 (Mo. App. S.D. 2010) and In Interest of C.M.D., 18 S.W.3d 556 (Mo. App. W.D. 2000). Followed by R.J.M. v. Phelps County Juvenile Office (In the Interest of L.M.), 322 S.W.3d 564 (Mo. App. S.D. 2010). Cited by S.M. v. E.M.B.R. (In re C.M.B.R.), 332 S.W.3d 793 (Mo. 2011).

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Although a parent may repent of abandonment, not every gesture will result in repentance. The court may attach little or no weight to infrequent visitations and token monetary contributions and circumstances where the parent has a history of infrequent contact but attempts to repent shortly before the hearing on the termination of parental rights petition. See In Interest of Y.M.H., 817 S.W.2d 279 (Mo. App. W.D. 1991). Followed by Z.H. v. G.H., 5 S.W.3d 567 (Mo. App. W.D. 1999) and In Interest of M.L.K., 804 S.W.2d 398 (Mo. App. 1991). Followed by R.J.M. v. Phelps County Juvenile Office (In the Interest of L.M.), 322 S.W.3d 564 (Mo. App. S.D. 2010). Cited by S.M. v. E.M.B.R. (In re C.M.B.R.), 332 S.W.3d 793 (Mo. 2011); see also In Interest of J.W., No. WD56575 (Mo. App. W.D. 11-30-1999). See earlier notation, In Re Adoption of H.M.C., 11 S.W.3d 81 (Mo. App. W.D. 2000). Followed by, Cited in Dissenting opinion by S.M. v. E.M.B.R. (In re C.M.B.R.), 332 S.W.3d 793 (Mo. 2011) and In Interest of C.M.D., 18 S.W.3d 556 (Mo. App. W.D. 2000). Followed by R.J.M. v. Phelps County Juvenile Office (In the Interest of L.M.), 322 S.W.3d 564 (Mo. App. S.D. 2010). Cited by S.M. v. E.M.B.R. (In re C.M.B.R.), 332 S.W.3d 793 (Mo. 2011).

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In a TPR based on abandonment, the proof adduced must include evidence showing some ability on the part of the parent to make monetary contribution and to visit or communicate. In Interest of Baby Girl W., 728 S.W.2d 545 (Mo. App. W.D. 1987). Followed by C.J.g v. D.G.P., 75 S.W.3d 794 (Mo. App. W.D. 2002). Limited by In Interest of C.R., 758 S.W.2d 511 (Mo. App. W.D. 1988). But see In Interest of B.L.B., 834 S.W.2d 795 (Mo. App. E.D. 1992). Followed by T.M. v. Greene County Juvenile Office (In the Interest of A.Y.M.), 154 S.W.3d 412 (Mo. App. S.D. 2004) (impediments to visitation do not in and of themselves excuse parent's obligation to provide child with a continuing relationship).

A parent who lacks ability to fully support a child, but who has the ability to make minimal contributions for child support, has a duty to do so. In Interest of S.J.G., 871 S.W.2d 638 (Mo. App. S.D. 1994). Cited by Greene County Juvenile Office v. B.D.W. (In re K.M.W.), 342 S.W.3d 353 (Mo. App. S.D. 2011). Further, the Children’s Division is not required to make a demand upon a parent to impose the duty upon a parent for some responsibility for the support of a child in the custody of Children’s Division. In Interest of B.L.B., 834 S.W.2d 795 (Mo. App. E.D. 1992). Followed by, Cited by T.M. v. Greene County Juvenile Office (In the Interest of A.Y.M.), 154 S.W.3d 412 (Mo. App. S.D. 2004). Even substantially reduced wages, such as those received by an incarcerated person, do not excuse the statutory obligation of a parent to make monetary contributions toward the support of their children. In Interest of M.L.K., 804 S.W.2d 398 (Mo. App. W.D. 1991). Followed by R.J.M. v. Phelps County Juvenile Office (In the Interest of L.M.), 322 S.W.3d 564 (Mo. App. S.D. 2010); Cited by S.M. v. E.M.B.R. (In re C.M.B.R.), 332 S.W.3d 793 (Mo. 2011). See also In Interest of S.L.J., 3 S.W.3d 902 (Mo. App. S.D. 1999). Followed by In re L.N.D., 219 S.W.3d 820 (Mo. App. S.D. 2007).

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Imprisonment of a natural parent does not per se constitute abandonment, but it is also not a bar to a finding of abandonment. H.W.S. v. C.T., 827 S.W.2d 237 (Mo. App. E.D. 1992). Followed by In re T.A.P., 953 S.W.2d 638 (Mo. App. S.D. 1997). Cited by In the Interest of J.R., 347 S.W.3d 641 (Mo. App. E.D. 2011). See also In the Interest of M.N.M., 906 S.W.2d 876 (Mo. App. S.D. 1995). Cited by In the Interest of J.M.W., 360 S.W.3d 887, 892 (Mo. App. E.D. 2012).

While the incarceration of a parent may not be used as an independent ground upon which to terminate parental rights, incarceration does not excuse the obligation of a parent to provide the child with a continuing relationship through communication or visitation and rights may be terminated for a parent's failure to meet the obligation of providing that continuing relationship. In Interest of M.L.K., 804 S.W.2d 398 (Mo. App. W.D. 1991). Followed by R.J.M. v. Phelps County Juvenile Office (In the Interest of L.M.), 322 S.W.3d 564 (Mo. App. S.D. 2010). Cited by S.M. v. E.M.B.R. (In re C.M.B.R.), 332 S.W.3d 793 (Mo. 2011). See also In Interest of S.L.J., 3 S.W.3d 902 (Mo. App. S.D. 1999). Followed by In re L.N.D., 219 S.W.3d 820 (Mo. App. S.D. 2007).

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Rights may be terminated where one parent kills another resulting in mental anguish or separation because of the surviving parent's lengthy prison term. See In Interest of D.R.M., 780 S.W.2d 145 (Mo. App. W.D. 1989). Cited by T.S. v. P.S., 797 S.W.2d 837 (Mo. App. W.D. 1990). See also In the Matter of A.B.M., 17 S.W.3d 912 (Mo. App. S.D. 2000). Cited by P.G.M. v. Jasper County Juvenile Office, 149 S.W.3d 507 (Mo. App. S.D. 2004).

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Under Section 211.447.4 (2), RSMo, the court may terminate parental rights if the child has been abused or neglected.

The court must consider and make findings on the aggravating factors listed in Section 211.447.5 (2)(a)-(d), RSMo. Those aggravating factors are as follows:  

1. Mental condition shown by competent evidence to be permanent or such that there is no reasonable likelihood that the conditions can be reversed, and which renders the parent unable to knowingly provide the child the necessary care, custody and control.

2. Chemical dependency which prevents the parent from consistently providing the necessary care, custody and control of the child, and which cannot be treated so as to enable the parent to consistently provide such care, custody and control.

3. A severe act or recurrent acts of physical, emotional or sexual abuse toward the child or any child in the family by the parent, including an act of incest, or by another under circumstances that indicate that the parent knew or should have known that such acts were being committed toward the child or any child in the family.

4. Repeated or continuous failure by the parent, although physically or financially able, to provide the child with adequate food, clothing, shelter or education as defined by law, or other care and control necessary for his physical, mental or emotional health and development.

As with the other contested grounds for termination, a court must find that the termination is in the best interests of the child, that the child was abused or neglected, and thereafter, the court shall consider and make findings on the previously stated four aggravating factors contained in Section 211.447.5 (2)(a)-(d), RSMo and the court must in addition evaluate and make findings on the factors listed in Section 211.447.7, RSMo. Even if no evidence is adduced on a particular "aggravating factor," the court should make a finding so stating. See In Interest of E.K., 860 S.W.2d 797 (Mo. App. E.D. 1993). Cited by In the Interest of K.E., 947 S.W.2d 468 (Mo. App. E.D. 1997). There must, however, be evidence of at least one of the foregoing aggravating factors to support termination under this ground in addition to best interests and a finding of abuse or neglect. In re: S.L.B., 964 S.W.2d 504 (Mo. App W.D. 1998). Cited by L.R.K. v. Greene County Juvenile Office (In the Interest of B.C.K.), 103 S.W.3d 319, 324 (Mo. App. S.D. 2003).

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Termination of parental rights for abuse or neglect is established by showing that the child has been adjudicated abused or neglected, not by showing that the parent has been adjudicated abusive or neglectful. In Interest of D.L.C., 834 S.W.2d 760 (Mo. App. S.D. 1992). Cited by M.T. v. Lentz (In re N.L.B.), 212 S.W.3d 123 (Mo. 2007). Thus, parental rights can be terminated under this ground even if the parent has not been adjudicated as the person responsible for the condition of abuse or neglect. Id.

Adjudication of abuse or neglect is, however, no longer required. See Section 211.447.5 (2), RSMo. The fact that the abuse or neglect has occurred is sufficiently supported at the termination of parental rights hearing by the admission by the mother at the hearing on the initial petition under Section 211.031.1(1). In Interest of C.N.W., 26 S.W.3d 386 (Mo. App. E.D. 2000). Followed by J.J.P. v. Greene County Juvenile Office, 113 S.W.3d 197, 201 (Mo. App. S.D. 2003); Criticized by In the Interest of M.D.R., 124 S.W.3d 469 (Mo. 2004).

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Psychological testimony is sufficient to establish mental condition and psychiatric testimony is not necessary. In Interest of D.C.H., 835 S.W.2d 533 (Mo. App. S.D. 1992). Cited by In the Interest of A.M.W. v. D.P., 64 S.W.3d 899 (Mo. App. S.D. 2002). But see In Re: S.P.W., 707 S.W.2d 814 (Mo. App. W.D. 1986). Cited by In Interest of L.G., 764 S.W.2d 89 (Mo. 1989). Criticized by In Interest of B.C.H., 718 S.W.2d 158 (Mo. App. W.D. 1986). Questioned by Missouri v. J.A.F., Mo. Dkt. No. 17830 (Mo. App. July 15, 1992).

Where parental rights are terminated based on abuse/neglect with an aggravating factor of  mental condition, the trial court is still required to make findings on the remaining three factors contained in Section 211.447.5 (2) (a) - (d), RSMo, and failure to do so requires remand to the trial court for entry of findings on each of the aggravating factors. Even if no evidence exists on a particular aggravating factor, the court should make a finding so stating. In Interest of K.D.C.R.C.B.-T., 928 S.W.2d 905 (Mo. App. E.D. 1996). Cited by In the Interest of A.M.C., 983 S.W.2d 635 (Mo. App. S.D. 1999).

The aggravating factor related to "mental condition" on the ground of abuse/neglect is satisfied and termination of parental rights is authorized where the mother suffers from major depression, anxiety disorder, personality disorder, substance abuse, suicidal ideations, clinical depression and is bi-polar with stress induced anger control problems, which increase when she has visits with the children and where her personality disorder is the type that is not amenable to change and it is shown by competent evidence that persons with this disorder do not typically respond to treatment. Matter of S.L.N., 8 S.W.3d 916 (Mo. App. S.D. 2000). Cited by M.F. v. G.P.F. (In the Interest of S.R.F.), 362 S.W.3d 420 (Mo. App. S.D. 2012). The aggravating factor related to "chemical dependency" is satisfied where mother has a substance abuse problem and is diagnosed as being chemically dependent, having an addictive disorder and where alcohol is smelled on mother's breath while visiting the children and where caseworkers observe alcohol in mother's home during a home visit and where mother refuses treatment because she feels treatment is a waste of time, and where mother uses alcohol and drugs to "self-medicate her depression." Id. Termination on ground of abuse/neglect for aggravating factor of "mental condition" is supported where father has a mental condition which is unlikely to be reversed to permit the father to parent the child consistently and where father denies his mental health issues and accordingly, is not receiving treatment. In Interest of A.D.G., 23 S.W.3d 717 (Mo. App. W.D. 2000). Cited by Mo. Dep't of Soc. Servs. v. S.V. (In The Interest of A.M.S.), 272 S.W.3d 305 (Mo. App. W.D. 2008). Distinguished by In the Interest of C.W., 211 S.W.3d 93 (Mo. 2007). In re R.A.W., 133 S.W.3d 1 (Mo. banc 2004), the Supreme Court set out a three pronged approach to a trial court’s consideration of an alleged mental condition. That approach consists of the following analysis: (1) documentation-whether the existence of the condition is supported by competent evidence; (2) duration-whether the condition is permanent or such that there is no reasonable likelihood that it can be reversed; and, (3) severity-whether the condition is so severe as to render the parent unable to knowingly provide the child with the necessary care, custody or control.

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Under Section 211.447.5(2) the act or recurrent act of physical, emotional or sexual abuse toward a child in the family also includes termination of parental rights to other children in the family who have not been sexually abused. Such circumstances “constitute grounds for termination …irrespective of whether the child is the target of such conduct.” In Interest of B.M.P., 704 S.W.2d 237, 244 (Mo. App. S.D. 1986). Cited by Mo. Children's Div. v. B.C. (In the Interest of L.E.C.), 182 S.W.3d 680 (Mo. App. W.D. 2006). Distinguished by In re M.A.J., 998 S.W.2d 177 (Mo. App. W.D. 1999).

A father's acts of incest with his minor sisters involves children "in the family" within the meaning of this statutory ground and may be used in a termination of parental rights proceeding related to father's daughter. In the Interest of L., 888 S.W.2d 337 (Mo. App. E.D. 1994). Cited by In the Interest of D.J., 73 S.W.3d 708 (Mo. App. E.D. 2002).

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To terminate parental rights, the court must find by clear, cogent and convincing evidence the factors set forth in Section 211.447.5. A copy of a criminal information and guilty plea of a step father to sexual contact with a child to show sexual abuse, and together with testimony that the child's mother failed to protect the child even though informed of the abuse was found to be sufficient evidence of Section 211.447.5(4). In Interest of J.L.M., 848 S.W.2d 502 (Mo. App. W.D. 1993). Cited by In the Interest of C.N.W. v. Lafata, 26 S.W.3d 386 (Mo. App. 2000).

Insufficient evidence was found where father knew mother was "easily angered," that she had a "temper problem," that she became "really irrational," and that the situation was worse when the children were sick or crying, thus creating an "explosive situation," the court held it was insufficient to show that father "knew or should have known" of mother's abuse where father's parental rights were terminated after an adjudication of abuse for a severe act of physical abuse. In Interest of T.S., 925 S.W.2d 486 (Mo. App. E.D. 1996). Cited by State ex rel. Amrine v. Roper, 102 S.W.3d 541 (Mo. 2003). Cited by Cochran v. Cochran (In re Cochran), 340 S.W.3d 638 (Mo. App. S.D. 2011). See also In Interest of R.J.B., 30 S.W.3d 868 (Mo. App. S.D. 2000) (TPR affirmed where child had unexplained injuries together with evidence of repeated or continuous neglect). Followed by F.C. v. Mo. Dep't of Soc. Servs., 211 S.W.3d 680 (Mo. App. S.D. 2007).

Termination of parental rights for abuse/neglect with an aggravating factor of "repeated or continuous neglect" is satisfied where mother was homeless, housing situation remained extremely unstable, mother lived with two different men, mother was discharged from drug treatment, was incarcerated, failed to provide financial support and had no employment even when she was not pregnant. In Interest of A.H., 9 S.W.3d 56 (Mo. App. W.D. 2000). Followed by J.O. v. Taney County Juvenile Office (In the Interest of D.O.), 315 S.W.3d 406 (Mo. App. S.D. 2010). Cited by Mo. Dep't of Soc. Servs. v. C.B.G. (In the Interest of C.J.G.), 358 S.W.3d 549 (Mo. App. S.D. 2012). TPR for abuse/neglect on aggravating factor of "repeated or continuous neglect" was affirmed where mother is homeless, addicted to cocaine, and where the children were twice placed back into mother's custody and twice removed again, and mother failed to complete drug program, and a fifth child was removed because mother's home was filthy with rotting food, crack cocaine and drug paraphernalia accessible to the child and where mother fails to seek adequate medical attention for second degree burns suffered by one of the children. In Interest of J.L.B., 9 S.W.3d 30 (Mo. App. W.D. 1999); In Interest of T.L.B., 376 S.W.3d 1 (Mo. App. S.D. 2011); see also In Interest of R.J.B., Id.

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The court may terminate parental rights for failure to rectify if it finds:

1. Termination is in the best interests of the child.
2. The child has been under the jurisdiction of the court for a period of one year.
3. Either (a) the conditions which led to the assumption of jurisdiction still persist, or conditions of a harmful nature continue to exist and there is little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the near future or (b) continuation of the parent-child relationship will greatly diminish the child's prospects for early integration into a stable and permanent home. In Interest of F.N.M., 951 S.W.2d 702 (Mo. App. E.D. 1997). Cited by In re S.E.K., 2009 Mo. App. LEXIS 1247 (Mo. Ct. App. E.D. Sept. 8, 2009).

In determining whether to terminate parental rights for failure to rectify, the court must consider and make findings on the four factors listed in Section 211.447.5 (3)(a)-(d), RSMo as well as the findings listed in Section 211.447.7, RSMo.

The factors which the court must consider, and on which the court must make findings, include the factors set forth in Section 211.447.7, RSMo (best interest) and, in addition, the specific factors applicable to the failure to rectify ground that are contained in Section 211.447.5(3)(a)-(d), RSMo. The factors specific to the failure to rectify ground are as follows:

1. The terms of a social service plan entered into by the parent and the division and the extent to which the parties have made progress in complying with those terms.
2. The success or failure of the efforts of the juvenile officer, the division or other agency to aid the parent on a continuing basis in adjusting his circumstances or conduct to provide a proper home to the child.
3. A mental condition shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed, and which renders the parent unable to normally provide the child the necessary care, custody and control.
4. A chemical dependency which prevents the parent from consistently providing the necessary care, custody and control over the child and which cannot be treated so as to enable the parent to consistently provide such care, custody and control.

Even if no evidence is adduced on a particular factor, the court should make a finding so stating. In Interest of D.A.H., 921 S.W.2d 618 (Mo. App. W.D. 1996). Cited by I.R.S. v. Greene County Juvenile Office, 361 S.W.3d 444 (Mo. App. S.D. 2012). See also In Interest of E.K., 860 S.W.2d 797 (Mo. App. E.D. 1993). Cited by In the Interest of K.E., 947 S.W.2d 468 (Mo. App. E.D. 1997). A termination of parental rights for failure to rectify may be granted and will be affirmed where the elements in the main paragraph have been proven even if there is no proof as to any of the four "aggravating factors" that are to be considered under that ground. In Interest of R.L.K., 957 S.W.2d 778 (Mo. App S.D. 1997). Cited by L.B. v. Jasper County Juvenile Office (In the Interest of N.L.B.), 145 S.W.3d 902 (Mo. App. S.D. 2004).

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Proof of all four of the above factors is not necessary for termination of parental rights. The above factors are not separate grounds for termination but rather are categories of evidence to be considered together with all other relevant evidence. In Re: H.K., 762 S.W.2d 465 (Mo. App. W.D. 1988). Followed by In Interest of J.L.M., 848 S.W.2d 502 (Mo. App. W.D. 1993), In Interest of T.M.E., 874 S.W.2d 552 (Mo. App. S.D. 1994). Cited by T.A.L. v. P.L.H., 328 S.W.3d 238 (Mo. App. W.D. 2010); but see In Interest of N.M.J., 24 S.W.3d 771 (Mo. App. W.D. 2000). Followed by In the Interest of N.J.S., 276 S.W.3d 397 (Mo. App. E.D. 2009). Cited by Mo. Dep't of Soc. Servs. v. C.B.G. (In the Interest of C.J.G.), 358 S.W.3d 549 (Mo. App. S.D. 2012).

It should be noted that the condition on which the termination of parental rights is granted does not have to be the same condition on which the child was adjudicated. In Interest of S.H., 915 S.W.2d 399, 403 (Mo. App. W.D. 1996). Cited by In the Interest of K.A.W., 133 S.W.3d 1 (Mo. 2004). Followed by J.J.P. v. Greene County Juvenile Office, 113 S.W.3d 197 (Mo. App. S.D. 2003).

In a termination of parental rights for failure to rectify, the trial court must make findings on all four of the "aggravating factors" set forth in Section 211.447.5(3)(a) - (d), RSMo. In the event there is no evidence on any one of the four, the court should make a finding so stating. In Interest of B.R.S., 937 S.W.2d 773 (Mo. App. W.D. 1997). Cited by Y.O. v. Barton County Juvenile Office (In the Interest of A.H.), 169 S.W.3d 152 (Mo. App. S.D. 2005). Failure to make the findings requires remand even if there appears to be enough evidence to support the judgment terminating parental rights. In Interest of M.G., 31 S.W.3d 487 (Mo. App. W.D. 2000) Cited by Juvenile Officer v. I.A. (In the Interest of M.A.), 185 S.W.3d 256 (Mo. App. 2006).

A judgment, which adopted findings on the "aggravating factors" from previous orders, was held to be minimally sufficient; however the better practice is to set forth the factual findings in the TPR judgment. In Interest of T.A.S., 32 S.W.3d 804 (Mo. App. W.D. 2000). Followed by Juvenile Officer v. RLO (In the Interest of ASO), 52 S.W.3d 59 (Mo. App. W.D. 2001). Cited by In the Interest of C.W., 211 S.W.3d 93 (Mo. 2007). The court should also make findings as to the original conditions which led to the assumption of jurisdiction as well as findings as to whether those conditions still persist. Id. Failure to do so renders the findings insufficient. Id.

In a TPR proceeding for failure to rectify, the trial court may take judicial notice of evidence adduced at the protective custody hearing and at the adjudicatory hearing. In Interest of L.V.M., 961 S.W.2d 129 (Mo. App. S.D. 1998). Cited by A.F.L. v. Greene County Juvenile Office (in the Interest of M.D.L.), 101 S.W.3d 30 (Mo. App. S.D. 2003).

Termination of parental rights for failure to rectify is affirmed where the mother visited and brought gifts for the children but paid no child support, did not follow through on recommended treatment, did not cooperate with DFS, provided no stable housing and the home in which she was living had no water or heat. In Interest of R.J.B., 30 S.W.3d 868 (Mo. App. S.D. 2000). Followed by F.C. v. Mo. Dep't of Soc. Servs., 211 S.W.3d 680 (Mo. App. S.D. 2007). See also In Interest of N.M.J., 24 S.W.3d 771 (Mo. App. W.D. 2000). Followed by In the Interest of N.J.S., 276 S.W.3d 397 (Mo. App. E.D. 2009). Cited by Mo. Dep't of Soc. Servs. v. C.B.G. (In the Interest of C.J.G.), 358 S.W.3d 549 (Mo. App. S.D. 2012).

In addition, the fact that two subsequently born children were never removed from the parents does not prevent the trial court from terminating parental rights with respect to a previously removed child for failure to rectify, despite the argument of the parents that the state was precluded from arguing failure to rectify because the subsequently born children were never removed from the home. Under these circumstances, the parents argued that the conditions must have been rectified or else the two subsequently born children would have been removed by DFS. This argument was rejected and TPR was affirmed. In Interest of A.D.R., 26 S.W.3d 364 (Mo. App. S.D. 2000) No further treatment.

Absence of treatment or services is no defense to a TPR and TPR will be affirmed even if DFS fails to fund a treatment program needed by the parent. In Interest of A.M.C., 32 S.W.3d 155 (Mo. App. W.D. 2000). Cited by Fort v. Greene County Juvenile Office (In the Interest of A.F.K.), 164 S.W.3d 149 (Mo. App. S.D. 2005).

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Failure to rectify may not be used as a ground for termination of parental rights where the child was initially brought under the jurisdiction of the juvenile court because of a parent's permanent mental illness which does not improve. In Interest of J.I.W., 695 S.W.2d 513 (Mo. App. W.D. 1985). Followed by In re C.M.E., 724 S.W.2d 289 (Mo. App. S.D. 1987). Cited by In the Interest of N.R.W., 112 S.W.3d 465 (Mo. App. W.D. 2003).

Mental illness of a parent is not per se harmful to a child and thus, the failure to rectify a mental illness which formed the basis for the original removal is not simply the persistence of the mental illness but rather the fact of a continuing actual or potential harm to the child. In Interest of C.P.B., 641 S.W.2d 456 (Mo. App. E.D. 1982). Followed by In re M.W.S., 160 S.W.3d 435 (Mo. App. W.D. 2005). TPR for failure to rectify related to mental condition is not authorized where the mother has a permanent mental condition but the mental condition is controllable and where mother has relapses but when she does so, she makes adequate provision for the care of her child and voluntarily seeks treatment for her mental illness. In Interest of D.L.M., 31 S.W.3d 64 (Mo. App. E.D. 2000). Cited by L.B. v. Jasper County Juvenile Office (In the Interest of N.L.B.), 145 S.W.3d 902 (Mo. App. S.D. 2004).

On the other hand, TPR was affirmed where mother asserted she was a battered woman and had "learned helplessness" because mother failed to establish the existence of the condition because of lack of expert testimony and because even if established, the condition would support TPR because the condition would prevent mother from consistently providing care for the children. In Interest of J.K., 38 S.W.3d 495 (Mo. App. W.D. 2001). Thus, the court rejected mother's contention that she did not "intentionally neglect" the children, holding that "intent" and "neglect" are mutually exclusive. Id. This court also affirmed TPR on a younger sibling who had not been harmed by the conditions in the home, reaffirming the proposition that it would be a "tragic misapplication" of the law to require the younger child to suffer the fate of older siblings. The court held that past abuse of a sibling is evidence of a currently dangerous home environment. Id.

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Although the court is required to consider the terms of a social service plan and the success or failure of the efforts of the juvenile officer and the Children’s Division, there is no statutory right to a certain level or standard of treatment or services which must be offered by the Children’s Division. In Interest of N.D., 857 S.W.2d 835 (Mo. App. W.D. 1993) Cited by In the Interest of P.L.O., 168 S.W.3d 716 (Mo. App. S.D. 2005). The failure of a state agency to follow its own guidelines or to offer adequate services to improve parenting skills so that the family could be reunified is not a valid defense to a proceeding to terminate parental rights. Id. See also In Interest of B.M.P., 704 S.W.2d 237 (Mo. App. S.D. 1986). Cited by Mo. Children's Div. v. B.C. (In the Interest of L.E.C.), 182 S.W.3d 680 (Mo. App. W.D. 2006). Distinguished by In re M.A.J., 998 S.W.2d 177 (Mo. App. W.D. 1999).

The fact that a parent has entered into a service agreement with DFS in one county and may be reasonably complying with the terms thereof, does not deprive the juvenile division of jurisdiction to terminate parental rights. In Interest of P.E.B., 708 S.W.2d 315 (Mo. App. S.D. 1986). Followed by In Interest of R.A.M., 755 S.W.2d 431 (Mo. App. S.D. 1988). Cited by In Interest of M.H., 859 S.W.2d 888 (Mo. App. S.D. 1993).

A social service plan (sometimes called a service agreement) is not mandatory and its absence is usually not a ground for reversal of a termination of parental rights decision. It is, however, a factor to be considered under the failure to rectify ground for termination of parental rights. In Interest of J.K.C., 841 S.W.2d 198 (Mo. App. W.D. 1992). Cited by State v. E.B. (In the Interest of D.M.B.), 178 S.W.3d 683 (Mo. App. S.D. 2005). Further, where the plan is freely, voluntarily and knowingly entered into, a parent may not argue in a TPR proceeding that the plan was too unreasonable. In Interest of J.A.A., 829 S.W.2d 79 (Mo. App. E.D. 1992). Cited by B.L.H. v. C.C.J., 158 S.W.3d 269 (Mo. App. E.D. 2005). Further, rights may be terminated even where a parent has completed the requirements of the treatment plan. In Interest of C.K.G., 827 S.W.2d 760 (Mo. App. S.D. 1992). Cited by State v. Gratts, 112 S.W.3d 12 (Mo. App. W.D. 2003); Matter of K.L.C., 9 S.W.3d 768 (Mo. App. S.D. 2000). Followed by In re Adoption of Minor Child R, 31 S.W.3d 551 (Mo. App. W.D. 2000). Cited by In re B.D.W., 185 S.W.3d 727 (Mo. App. S.D. 2006). Court approval of the social service plan is not required. T.S. v. P.S., 797 S.W.2d 837 (Mo. App. W.D. 1990). Followed by In re B.R.M., 912 S.W.2d 86 (Mo. App. W.D. 1995). Cited by A.A.R. v. B.R., 71 S.W.3d 626 (Mo. App. W.D. 2002).

The court is required to make findings on the terms of the social service plan and the extent of compliance therewith. The finding is sufficient if the plan is identified by date, if the finding states that the parent was aware of its terms and that the parent failed to comply. In Interest of N.M.J., 24 S.W.3d 771 (Mo. App. W.D. 2000). Followed by In the Interest of N.J.S., 276 S.W.3d 397 (Mo. App. E.D. 2009). Cited by Mo. Dep't of Soc. Servs. v. C.B.G. (In the Interest of C.J.G.), 358 S.W.3d 549 (Mo. App. S.D. 2012).

The court is also required to make findings on the success or failure of efforts by DFS and the juvenile officer to make reunification possible. However, a complete absence of treatment or services is no defense to a TPR proceeding. In Interest of A.M.C., 32 S.W.3d 155 (Mo. App. W.D. 2000). Cited by Fort v. Greene County Juvenile Office (In the Interest of A.F.K.), 164 S.W.3d 149 (Mo. App. S.D. 2005). DFS is not required to provide all available services before a TPR where the parent's failure to cooperate would render additional services useless. Id. In addition, the failure of DFS to fund a program is no defense where the parent alleges the failure to complete the program is a result of the lack of funding. Id.

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The court may terminate parental rights for felony convictions if it finds:

1. The termination is in the best interests of the child.
2. The parent has been found guilty or plead guilty to a felony violation of Chapter 566, RSMo or a violation of Section 568.020, RSMo.
3. When the child or any child in the family was a victim.

As used in this ground, the term "child" means a person less than 18 years of age at the time of the crime and who resided with the parent or was related to the parent within the third degree of consanguinity or affinity. Section  211.447.5(4), RSMo.

In determining whether to terminate parental rights for felony convictions, the court must make findings on any applicable factors set forth in Section 211.447.7 (best interests), RSMo.

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The court may terminate parental rights for forcible rape if it finds:

1. The termination is in the best interests of the child; however, findings on the best interest factors as set forth in 211.447.7 RSMo are not required.
2. The child was conceived and born as a result of an act of forcible rape.

When the biological father has plead guilty to, or is convicted of, the forcible rape of the birth mother, such plea or conviction shall be conclusive evidence supporting the termination of the biological father's parental rights. Section 211.447.5(5), RSMo.

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The court may terminate parental rights for parental unfitness if it finds:

1. The termination is in the best interests of the child; however, findings on the best interest factors as set forth in 211.447.7, RSMo are not required.
2. The parent is unfit to be a party to the parent and child relationship;
3. Because of a consistent pattern of committing a specific abuse or because of specific conditions directly relating to the parent and child relationship;
4. Either of which are determined by the court to be of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental or emotional needs of the child.

The statute specifies that a "specific abuse" includes but is not limited to abuses as defined in Section 455.010, RSMo, child abuse or drug abuse "before the child." Section 211.447.5(6), RSMo.

It is also presumed, under this ground, that a parent is unfit to be a party to the parent and child relationship upon a showing that within a three year period immediately prior to the termination adjudication, that the parent's parental rights to one or more other children were involuntarily terminated under Section  211.447.5(1)(2)(3) or (4), RSMo, or the similar laws of other states.

This presumption of parental unfitness is rebuttable and can be overcome by evidence that the circumstances leading to the previous termination of parental rights no longer exist or that the parent is no longer unfit. In Interest of A.H., 9 S.W.3d 56 (Mo. App. W.D. 2000). Followed by J.O. v. Taney County Juvenile Office (In the Interest of D.O.), 315 S.W.3d 406 (Mo. App. S.D. 2010). Cited by Mo. Dep't of Soc. Servs. v. C.B.G. (In the Interest of C.J.G.), 358 S.W.3d 549 (Mo. App. S.D. 2012). Where mother had unstable housing both when the child was born and after the child was removed, where mother was discharged for noncompliance from a drug treatment program, where mother was diagnosed by a psychologist with "neglect of children" and where mother was given a poor prognosis and it was suggested that mother would need long term services and where a psychologist concluded the child would need stability as early as possible, the mother failed to overcome the statutory presumption of unfitness despite the fact that mother had the same residence for eight months, was drug free for six months, was attending drug treatment, was taking classes to obtain her GED and had above average scores on her parenting inventory. Id.

A previous Pennsylvania TPR judgment was admissible in a Missouri TPR case to establish the presumption of parental unfitness. This is true despite the fact that the juvenile officer did not offer into evidence the Pennsylvania statute to show that the ground was similar to one of the listed Missouri grounds. In this case, the Pennsylvania judgment itself recited language similar to Missouri's "failure to rectify." In Interest of C.C., 32 S.W.3d 824 (Mo. App. W.D. 2000). Followed by L.V.J. v. Juvenile Officer (In the Interest of E.C.H.J.), 160 S.W.3d 815 (Mo. App. W.D. 2005). In the same case, a West Virginia TPR judgment outside the three year period was also admissible, not to raise the presumption of unfitness, but on the issue of "best interests." Id. Once the presumption is raised, the burden of proof shifts to the parent to rebut the presumption. Id.

*247 Evaluation of the Section 211.447.7, RSMo factors is not required under this ground. It is unclear whether this was an intentional omission by the legislature or whether the failure to include consideration of those factors was unintentional. It is suggested as a practice pointer that the court consider and make findings on applicable factors under Section 211.447.7, RSMo.

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In all contested termination of parental rights cases (except "Forcible Rape" and "Parental Unfitness" - see above), the court is required to evaluate and make findings on the factors listed in Section 211.447.7, RSMo when appropriate and applicable to the case. These “best interest” factors are as follows:

1. The emotional ties to the birth parent.
2. The extent to which the parent has maintained regular visitation or other contact with the child.
3. The extent of payment by the parent for the cost of care and maintenance of the child when financially able to do so including the time that the child is in the custody of the Division or other child-placing agency.
4. Whether additional services would be likely to bring about a lasting parental adjustment enabling a return of the child to the parent within an ascertainable period of time.
5. The parent's disinterest in or lack of commitment to the child.
6. The conviction of the parent of a felony offense that the court finds is of such a nature that the child will be deprived of a stable home for a period of years; provided, however, that incarceration in and of itself shall not be grounds for termination of parental rights.
7. Deliberate acts of the parent or act of another of which the parent knew or should have known that subjects the child to a substantial risk of physical and mental harm.

Unlike the aggravating factors under the contested TPR grounds of abuse/neglect or failure to rectify, the factors to be considered under Section 211.447.7, RSMo only require findings as to those factors which the court, in its discretion, deems applicable to the case. In Interest of K.O., 933 S.W.2d 930 (Mo. App. E.D. 1996). Cited by In the Interest of R.M., 234 S.W.3d 619 (Mo. App. W.D. 2007); see also In Interest of N.M.J., 24 S.W.3d 771 (Mo. App. 2000). Followed by In the Interest of N.J.S., 276 S.W.3d 397 (Mo. App. E.D. 2009). Cited by Mo. Dep't of Soc. Servs. v. C.B.G. (In the Interest of C.J.G.), 358 S.W.3d 549 (Mo. App. S.D. 2012) (where there is evidence on two factors, but the court does not make findings on those two factors, the case would be remanded for findings on the two factors). See also In Interest of T.A.S., 32 S.W.3d 804 (Mo. App. W.D. 2000). Followed by Juvenile Officer v. RLO (In the Interest of ASO), 52 S.W.3d 59 (Mo. App. W.D. 2001). Cited by In the Interest of C.W., 211 S.W.3d 93 (Mo. 2007), which held that findings were insufficient where letters, but not visits, are addressed (there was evidence of visits and trial court was free to disbelieve, but still needed to address the issue of visits). This same case held that findings related to support must also address ability to support. Id.

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In all TPR cases, the court may attach little or no weight to infrequent visitation, communications or contributions. These are frequently referred to as token contacts, token support or token efforts. Section 211.447.8, RSMo. A few phone calls and two letters that were returned because of no forwarding address is held to constitute only token contact permitting a determination of willful abandonment thereby allowing an adoption without consent. In Re Adoption of H.M.C., 11 S.W.3d 81 (Mo. App. W.D. 2000). Followed by, Cited in Dissenting opinion by S.M. v. E.M.B.R. (In re C.M.B.R.), 332 S.W.3d 793 (Mo. 2011).

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It is irrelevant in a termination of parental rights proceeding that the maintenance of the parent-child relationship may serve as an inducement for the parent's rehabilitation. Section 211.447.8, RSMo.

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An outline of the order of the proceedings in a termination of parental rights case is as follows:

1. Referral to the juvenile officer by any person. Section 211.447.1, RSMo.
2. Juvenile officer makes preliminary inquiry. Section 211.447.1, RSMo.
3. Juvenile officer must file petition to terminate parental rights if one of three mandatory grounds exist under Section 211.447.2, RSMo unless such mandatory filing is excused by the existence of one of three factors under Section 211.447.3, RSMo. Juvenile officer may file petition to terminate parental rights if one or more grounds exist under Section 211.447.5, RSMo.
4. Appointment of guardian ad litem as soon as practicable after the filing of a petition. Section 211.462.1, RSMo.
5. Service of summons. Section 211.453, RSMo.
6. Notification of right to counsel. Section 211.462.2, RSMo.
7. Juvenile officer to meet with court within 30 days after the filing of a petition for termination of parental rights to determine issues related to service and to request a court order for investigation and social study. Section 211.455, RSMo.
8. Court orders investigation and social study. Section 211.455.3, RSMo. (Not applicable to consent terminations under Section 211.444, RSMo.) A written report of the findings of the investigation and social study shall be made to the court to aid the court in its best interest determination.
9. Dispositional hearing. Section 211.459, RSMo.
10. Order of termination of parental rights issued. Section 211.477, RSMo. This order is best framed as a "Findings of Fact, Conclusions of Law and Judgment." The order must include findings as to best interests, each and every element as to the ground of termination that provides the basis for the TPR, and findings on the factors listed in Section 211.447.7, RSMo unless the termination is for forcible rape under Section 211.447.5(5), RSMo or parental unfitness under Section 211.447.5(6), RSMo. In addition, the findings must include findings on each of four "aggravating factors" under the ground of abuse/neglect under Section 211.447.5(2), RSMo or failure to rectify under Section 211.447.5(3), RSMo. Even if there is no evidence on one of these particular "aggravating factors" the court should make a finding so stating.

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Any information that could justify the filing of a petition to terminate parental rights may be referred to the juvenile officer by any person. Upon receipt of said information, the juvenile officer must make the preliminary inquiry and may file a petition to terminate parental rights. If the juvenile officer decides that a petition should not be filed, he must notify the informant in writing within 30 days of the referral and the notice must include the reason why the petition will not be filed. The informant may thereafter bring the matter directly to the attention of the judge of the juvenile court by presenting to him the information in writing. The juvenile court judge may thereafter order the juvenile officer to take further action including the making of a further preliminary inquiry or the filing of a petition for termination of parental rights. Section 211.447.1, RSMo.

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The petition for termination of parental rights shall be filed in the juvenile division of the circuit court, or the family court in circuits which have such a court. The county in which the proceeding is filed is the county which has prior jurisdiction over the juvenile or, if no such prior jurisdiction exists, then the petition shall be filed "where the child is." Section 211.452.1, RSMo.

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The petition must include the following information:

1. The name, sex, date and place of birth, and residence of the child if known after due and diligent search.
2. If known after due and diligent search, the name, address and date of birth of the parent.
3. The name and address of the person holding legal or actual custody of the child, the guardian of the person of the child and the organization or agency holding legal or actual custody or providing care for the child.
4. The facts on which termination is sought and the ground or grounds authorizing termination. Section 211.452.1(1)-(4), RSMo.
A petition for termination of parental rights may be filed by the juvenile officer or by Children’s Division, or if in connection with an adoption proceeding, by the adoptive petitioners. Sections 211.447 and 453.040(8), RSMo.

A petition for termination of parental rights may not be filed by a parent. In Interest of B.L.G., 731 S.W.2d 492 (Mo. App. S.D. 1987). Explained by In re in Interest of R.A.S., 826 S.W.2d 397 (Mo. App. W.D. 1992). Distinguished by Taylor v. Taylor, 47 S.W.3d 377 (Mo. App. W.D. 2001). See also State ex rel. L.L.B. v. Eiffert, 775 S.W.2d 216 (Mo. App. S.D. 1989). Cited by In re Baby Girl, 850 S.W.2d 64 (Mo. 1993). Cited by State ex rel. Am. Family Mut. Ins. Co. v. Scott, 988 S.W.2d 45 (Mo. App. S.D. 1998); State v. Taylor, 323 S.W.2d 534 (Mo. App. 1959). Superseded by statute as stated in F. v. Grush, 638 S.W.2d 315 (Mo. App. E.D. 1982); In Interest of K.P.B., 625 S.W.2d 692 (Mo. App. 1981). Cited by Doctor's Assocs. v. Duree, 30 S.W.3d 884 (Mo. App. E.D. 2000). In order to meet due process requirements, the TPR petition must contain allegations which are likely to inform the parties of the charges so that defenses may be prepared. In Interest of D.M.J., 683 S.W.2d 313 (Mo. App. S.D. 1984). Cited by In Interest of L.G., 764 S.W.2d 89 (Mo. 1989). Cited by J.O. v. Taney County Juvenile Office (In the Interest of D.O.), 315 S.W.3d 406 (Mo. App. S.D. 2010).

A judgment terminating parental rights for "failure to rectify" must be reversed where the petition alleges only "abandonment." A TPR petition must contain allegations likely to inform the persons involved of the charges so that objections and defenses may be prepared. In Interest of H.R.R., 945 S.W.2d 85 (Mo. App. W.D. 1997). Distinguished by S.M.H. v. T.H., 160 S.W.3d 355 (Mo. 2005). Cited by M.F. v. G.P.F. (In the Interest of S.R.F.), 362 S.W.3d 420 (Mo. App. S.D. 2012). Due process requires that a termination of parental rights occur only on grounds asserted in the petition. A failure to object to evidence offered that is beyond the scope of the pleadings results in automatic amendment of the pleadings to conform to the evidence and constitutes consent to try the applicable issues, but only where the evidence presented bears solely upon the unpleaded issue, and not upon issues already in the case. In the Matter of S.L.N., 8 S.W.3d 916 (Mo. App. S.D. 2000). Cited by M.F. v. G.P.F. (In the Interest of S.R.F.), 362 S.W.3d 420 (Mo. App. S.D. 2012).

A petition that fails to plead specific statutory grounds may constitute a jurisdictional defect. In an adoption case, it was held that where the petition failed to plead the consent of the parent or facts that would make the consent unnecessary, the petition did not state a cause of action. See In Interest of M.F., 1 S.W.3d 524 (Mo. App. W.D. 1999). Cited by In re F.C., 274 S.W.3d 478 (Mo.App. S.D. 2008).

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If there is more than one child in the family and a termination of parental rights petition is being or has been prepared for each child, the court may join the cases for disposition in one proceeding. Joinder must, however, be found to be in the best interests of each child. Section 211.452.2, RSMo. A decision of the trial court denying a motion to consolidate competing adoption actions will only be reversed if it is an abuse of discretion. In Re Adoption of H.M.C., 11 S.W.3d 81 (Mo. App. W.D. 2000). Followed by, Cited in Dissenting opinion by S.M. v. E.M.B.R. (In re C.M.B.R.), 332 S.W.3d 793 (Mo. 2011).

Where the child had been residing with the adoptive parents for four years and there was no evidence that they were unsuitable as custodians, denial of motion to consolidate competing adoption action by grandparents did not constitute error. Id.

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Service of summons may be waived. Sections 211.453.1 and 211.453.4, RSMo. If not waived, service of summons must be made as in other civil cases in the manner prescribed in Section 506.150, RSMo. If service is not waived and cannot had in the manner prescribed in Section 506.150, RSMo, then service must be made by mail or publication as provided in Section 506.160, RSMo. Cf. Section 453.060.5, RSMo requiring, in adoption cases, that in all cases where the putative father is unknown, service shall be made by publication on "John Doe" as provided in Section 506.160, RSMo.

Persons who shall be summoned and receive a copy of the petition include:

1. The parent of the child, including a putative father who has acknowledged the child as his own by affirmatively asserting his paternity.
2. The guardian of the person of the child.
3. The person, agency or organization having custody of the child.
4. The foster parent, relative or other person with whom the child has been placed.
5. Any other person whose presence the court deems necessary.

It is a good idea to make certain that summons is served upon each person named in the petition as either a child, a parent, a legal or actual custodian, a guardian of the person or an organization or agency holding legal or actual custody or providing care for the child. Note that for purposes of the termination of parental rights law, the term parent includes a biological parent, the "legal" father (which is the husband of the natural mother at the time the child was conceived), a parent by adoption and a putative father (an alleged father).

Although Section 211.442 (3), RSMo states a putative father shall have no legal relationship unless, prior to the entry of an order terminating parental rights, has acknowledged the child as his own by affirmatively asserting his paternity, and although Section 211.453, RSMo requires service of summons on a parent including a putative father who has acknowledged the child as his own by affirmatively asserting his paternity, it is questionable whether a person named as an alleged or putative father should not be served if he has not affirmatively asserted his paternity. It seems that the better course would be to serve the alleged father even if he has not affirmatively asserted his paternity and allege abandonment on the part of said putative father. This procedure would avoid any potential due process or lack of notice problems should a putative father who has not affirmatively asserted paternity challenge the termination of parental rights. But see In Interest of J.F., 719 S.W.2d 790 (Mo. 1986). Cited by D.L.G. v. E.L.S., 774 S.W.2d 477 (Mo. 1989).

*257 Section 211.453, RSMo has been declared unconstitutional insofar as it removes the necessity of service by publication upon a parent whose identity is unknown or cannot be ascertained. In Interest of Loveheart, 762 S.W.2d 32 (Mo. 1988). Cited by T.L. v. Greene County Juvenile Office (In the Interest of H.L.L.), 179 S.W.3d 894 (Mo. 2005). Distinguished by In the Interest of S.M.B., 254 S.W.3d 214 (Mo. App. S.D. 2008).

In summary, the U.S. Supreme Court has stated that due process is evaluated by balancing the paramount interests in the welfare of children with the rights of parents based on the amount of responsibility the parents have assumed for the child. Lehr v. Robertson, 463 U.S. 248, 257, 103 S.Ct. 2985, 2991 (1983). Cited by Tuan Anh Nguyen v. INS, 533 U.S. 53 (U.S. 2001). The U.S. Supreme Court has also recognized a legitimate state interest in facilitating the adoption of young children and in having prompt and certain adoption procedures. Id. at 263-265, 103 S.Ct. at 2994-2995. In addition, the U.S. Supreme Court has stated that parental rights do not spring full blown from a biological connection between parent and child. Parental rights require relationships that are more enduring. Caban v. Mohammed, 441 U.S. 380, 397, 99 S.Ct. 1760, 1770 (1979). Cited by Tuan Anh Nguyen v. INS, 533 U.S. 53 (U.S. 2001). From these precepts and holdings, the U.S. Supreme Court has held that an unwed father, who has failed to demonstrate a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of a child, does not merit substantial protection under the due process clause. Lehr, 463 U.S. at 261, 103 S.Ct. at 2993. Despite the foregoing, the best, and recommended course, is to insure that all parties are served in some manner even if that manner is by publication because it is the best available. This suggestion applies also to putative fathers who have not affirmatively asserted paternity. In D.L.G. v. E.L.S., 774 S.W.2d 477 (Mo. banc 1989). Cited by P.J.B. v. D.A.P. (In re Adoption of C.P.G.B.), 302 S.W.3d 745 (Mo. App. S.D. 2010), the Supreme Court of Missouri considered the question of whether service by publication on a putative father who was not named on the birth certificate and who was not a "legal father" by having been married to the birth mother, was more than a "mere irregularity" thereby entitling appellant to set aside a decree of adoption based upon a petition for review filed after the one year statute of limitations contained in Section 453.140, RSMo. See also In re: M.N.M., 605 A.2d 921 (D.C. App. 1992). Cited by In re T.J.L., 998 A.2d 853 (D.C. 2010) (putative father's filing of paternity/custody action, deposition of mother and child's grandfather in effort to locate the child sufficient to give rise to due process protections such that failure to notify putative father violates father's right to due process).

*258 In its discussion of the rights of a mere putative father, the D.L.G. court distinguished the case of In Re: Adams, 237 S.W.2d 232 (Mo. App. 1951), on the ground that the father in Adams was the legal father of the child, married to the child's mother at birth. The court notes that a legal father is a "necessary party" and entitled to notice. The D.L.G. court held that since the identity of the father was unknown, then the appellant in D.L.G. was not entitled to notice, and since appellant (putative father) was not entitled to notice at all, service by publication was no more than a "mere irregularity" and appellant was not entitled to have the decree of adoption set aside. The D.L.G. court relied on holdings in the cases of In Interest of J.F., 719 S.W.2d 790, 793 (Mo. Banc 1986). Cited by D.L.G. v. E.L.S., 774 S.W.2d 477 (Mo. 1989) (statutes denying notice to putative father who have not affirmatively asserted paternity are not arbitrary) and J.B.B. v. Baby Girl S., 611 S.W.2d 359, 362 (Mo. App. 1980). Cited by D.L.G. v. E.L.S., 774 S.W.2d 477 (Mo. 1989) (unknown putative father who has not affirmatively asserted paternity not entitled to notice of adoption).

In Interest of J.F. and J.B.B. v. Baby Girl S. certainly seem inconsistent with the holding in In Interest of Loveheart, supra, 762 S.W.2d 32 (Mo. 1988). Cited by T.L. v. Greene County Juvenile Office (In the Interest of H.L.L.), 179 S.W.3d 894 (Mo. 2005). Distinguished by In the Interest of S.M.B., 254 S.W.3d 214 (Mo. App. S.D. 2008) (Section 211.453, RSMo, unconstitutional insofar as it removes necessity of service by publication upon a parent whose identity is unknown or cannot be ascertained).

Because this area of the law is confusing at best and has inconsistent holdings at worst, the trial judge is strongly cautioned to make certain that all parties are served including putative fathers who have not affirmatively asserted paternity, despite apparent statutory authority and/or case law which may seem to excuse service and notice.

An excellent discussion of efforts to locate a party prior to obtaining service by publication is contained in In Re: Adoption of Z.T.H., 910 S.W.2d 830 (Mo. App. W.D. 1995). Cited by J.P.B. v. J.E.B., 186 S.W.3d 767 (Mo. App. W.D. 2006) (telephoning father's mother and sister, directory assistance in the city where father lived, father's last known address at a Salvation Army facility, state courts and father's probation officer held sufficient to justify publication as most reasonable means of service where Salvation Army, state courts and probation officer as well as father's relatives all refused to provide father's address to mother).

In a termination of parental rights action, service of process upon the right party by the wrong name still constitutes good service. In Interest of A.D.G., 23 S.W.3d 717 (Mo. App. W.D. 2000). Cited by Mo. Dep't of Soc. Servs. v. S.V. (In The Interest of A.M.S.), 272 S.W.3d 305 (Mo. App. W.D. 2008). Distinguished by In the Interest of C.W., 211 S.W.3d 93 (Mo. 2007). In any event, appearance by that party served by the wrong name negates any error in service. Id. In addition, even if the court does not acquire jurisdiction over one party, another party whose rights are terminated in the same case does not have standing to complain about the failure to serve the one party over whom it is alleged the court did not acquire jurisdiction. Id.

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Section 2.37 Appointment of Guardian Ad Litem

The court shall appoint a guardian ad litem as soon as practicable after the filing of a petition for termination of parental rights. Section 211.462.1, RSMo. The duties of the guardian ad litem are set forth at Section 211.462.3 (1)-(3), RSMo and include the following:

1. The guardian ad litem shall be the legal representative of the child, and may examine, cross-examine, subpoena witnesses and offer testimony. The guardian ad litem may also initiate an appeal of any disposition that he determines to be adverse to the best interests of the child.

2. The guardian ad litem shall be an advocate for the child during the dispositional hearing and aid in securing a permanent placement plan for the child. To ascertain the child's wishes, feelings, attachments and attitudes, the guardian ad litem shall conduct all necessary interviews with persons, other than the parent, having contact with or knowledge of the child, and, if appropriate, shall interview the child.

3. The guardian ad litem shall protect the rights, interests and welfare of the minor or incompetent parent by exercising the powers and duties enumerated in subdivisions 1 and 2 of Section 211.462.3, RSMo.

Removal of the guardian ad litem is a matter vested in the sound discretion of the appointing court. State ex rel. Bird v. Weinstock, 864 S.W.2d 376 (Mo. App. E.D. 1993). Cited in Suffian v. Usher, 19 S.W.3d 130 (Mo. 2000). In addition, the guardian ad litem is protected by quasi-judicial immunity as to conduct within the scope of the duties of the guardian ad litem. Id. at 385-386. For a good discussion of guardian ad litem duties, see In Interest of J.L.H., 647 S.W.2d 852 (Mo. App. W.D. 1983). Cited by S.M. v. E.M.B.R. (In re C.M.B.R.), 332 S.W.3d 793 (Mo. 2011).

Attorney's fees for the juvenile officer's attorney may not be taxed as costs pursuant to Section 211.462.4, RSMo, in a termination of parental rights proceeding. In re D.L.S., 934 S.W.2d 30 (Mo. App. E.D. 1996). Followed by In the Interest of D.W.P., 110 S.W.3d 863 (Mo. App. E.D. 2003). However, witness fees and deposition expenses may be taxed as costs in a termination of parental rights proceeding. In Interest of J.P., 947 S.W.2d 442 (Mo. App. W.D. 1997). Cited by Mo. Dep't of Soc. Servs. v. Crawford County Juvenile Office (In the Interest of N.T.W.L.), 215 S.W.3d 758 (Mo. App. S.D. 2007).

In a termination of parental rights case, a guardian ad litem should be appointed for an incompetent parent. There is no inherent conflict of interest where an attorney for that parent is also appointed to serve as guardian ad litem for the same parent. If, however, the dual role results in an actual conflict of interest, the court should appoint a separate guardian ad litem. In Interest of C.D., 27 S.W.3d 826 (Mo. App. W.D. 2000). No Further Missouri case law; Cited by State v. Switzer (In re Interest of J.K.), 265 Neb. 253 (Neb. 2003). In this case, an attorney had been appointed to represent mother and had represented her for approximately one year before the hearing on the termination of parental rights petition. On the day of trial, the same attorney who was representing mother was appointed to serve as her guardian ad litem because a mental evaluation conducted several months previously showed that mother was incompetent. The failure to appoint the GAL in a timely manner would not result in reversal where there was no objection, the attorney was familiar with the case, there was no request for a continuance, the attorney announced ready to proceed and there was no actual conflict of interest in the attorney serving in both roles. Id.

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Section 2.38 Right to Counsel/Appointment of Counsel

The court shall notify the parent or guardian of the person of the child of the right to have counsel. If counsel is requested and the parent or guardian of the person of the child is financially unable to employ counsel, counsel shall be appointed by the court. Notice of the right to counsel and that counsel will be appointed if the parent or guardian is financially unable to employ counsel must be contained in the summons. In addition, if the parent is a minor or incompetent, the court shall appoint a guardian ad litem to represent such minor or incompetent parent. Section 211.462.2, RSMo.

In a termination of parental rights proceeding, "court costs" include the fee of the guardian ad litem. See In Interest of D.L.D., 701 S.W.2d 152 (Mo. App. W.D. 1985). Cited by In re Baby Girl, 850 S.W.2d 64 (Mo. 1993) and A.M.G. v. Missouri Division of Family Services, 660 S.W.2d 370 (Mo. App. E.D. 1983). Followed by Juvenile Officer v. Missouri Div. of Family Servs. (In the Interest of J.P.), 947 S.W.2d 442 (Mo. App. W.D. 1997). Cf. Section 211.281 and cases thereunder which hold that fees for appointed counsel are not "costs" in other juvenile cases under Chapter 211, RSMo.

In a TPR proceeding, the trial court has authority to tax those costs that are "reasonably predictable" and "contemplated by the legislature" as necessary to effectuate the intent of the statute. In Interest of J.P., 947 S.W.2d 442 (Mo. App. W.D. 1997). Cited by Mo. Dep't of Soc. Servs. v. Crawford County Juvenile Office (In the Interest of N.T.W.L.), 215 S.W.3d 758 (Mo. App. S.D. 2007). In this case, it was held that witnesses and deposition costs, like attorney's fee for counsel appointed for parents and costs of printing briefs fall into this category and may, accordingly, be taxed against Children’s Division since Children’s Division is an "agency" within the meaning of Section 211.462.4, RSMo.

An attorney appointed for a parent who provides services on appeal should be awarded reasonable attorney's fees, and those fees for services rendered on an appeal can be taxed as court costs under Section 211.462.4. In Interest of A.D.G., No. 23 S.W.3d 717 (Mo. App. W.D. 2000). Cited by Mo. Dep't of Soc. Servs. v. S.V. (In The Interest of A.M.S.), 272 S.W.3d 305 (Mo. App. W.D. 2008). Distinguished by In the Interest of C.W., 211 S.W.3d 93 (Mo. 2007). See also In Interest of A.M.C., 32 S.W.3d 155 (Mo. App. W.D. 2000). Cited by Fort v. Greene County Juvenile Office (In the Interest of A.F.K.), 164 S.W.3d 149 (Mo. App. S.D. 2005) (case remanded to trial court for determination of attorney's fees for appointed counsel on appeal).

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Section 2.39 Failure to Appoint Counsel - Effect

The failure of the court to appoint an attorney for a parent in a TPR proceeding or to obtain an affirmative waiver of that right constitutes reversible error. B.L.E. v. Elmore, 723 S.W.2d 917 (Mo. App. W.D. 1987). Cited by S.M. v. E.M.B.R. (In re C.M.B.R.), 332 S.W.3d 793 (Mo. 2011). Followed by In the Interest of J.R., 347 S.W.3d 641 (Mo. App. E.D. 2011).

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Section 2.40 Timeliness of Request

However, where the request for a court appointed attorney comes too late, the failure to appoint an attorney does not constitute reversible error. In Interest of B.M.P., 704 S.W.2d 237 (Mo. App. S.D. 1986). Cited by Mo. Children's Div. v. B.C. (In the Interest of L.E.C.), 182 S.W.3d 680 (Mo. App. W.D. 2006). Distinguished by In re M.A.J., 998 S.W.2d 177 (Mo. App. W.D. 1999). In this case, father had the mental capacity to make the timely request and the evidence showed he was not bashful about contacting public officials. Id. Court appointed attorneys in TPR cases should be awarded attorney's fees for services rendered to perfect an appeal and for services in the TPR hearing. See In Interest of Y.M.H., 817 S.W.2d 279 (Mo. App. W.D. 1991). Followed by Z.H. v. G.H., 5 S.W.3d 567 (Mo. App. W.D. 1999) and In Interest of M. V., 775 S.W.2d 262 (Mo. App. W.D. 1989). Cited by In the Interest of P.L.O., 168 S.W.3d 716 (Mo. App. S.D. 2005).

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Section 2.41 Waiver of Right to Counsel

The right to counsel in a TPR case may be waived by the failure to the parent to meet with appointed counsel, to maintain contact with appointed counsel prior to hearings and failure to appear for prescheduled appointments with the attorney and by being unreachable by telephone or mail. In Interest of K.D.H., 871 S.W.2d 651 (Mo. App. W.D. 1994). Overruled by B.J.K. v. M.S., 197 S.W.3d 237 (Mo. App. W.D. 2006).

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Section 2.42 Right to Effective Assistance of Counsel

The statute which gives parents the right to an attorney in a TPR proceeding implies the right to effective assistance of counsel. In Interest of W.S.M., 845 S.W.2d 147 (Mo. App. W.D. 1993). Followed by In the Interest of D.F.P., 981 S.W.2d 663 (Mo. App. S.D. 1998). Cited by Mo. Dep't of Soc. Servs. v. C.B.G. (In the Interest of C.J.G.), 358 S.W.3d 549 (Mo. App. S.D. 2012). The test of ineffective assistance of counsel is whether counsel's performance is so deficient as to deprive the parents of a meaningful hearing. Id. To find ineffective assistance of counsel, two issues must be shown:

1. Trial counsel fails to exercise the customary skill and diligence that a reasonably competent attorney would exercise under similar circumstances; and

2. Failure to exercise such diligence is prejudicial. In Interest of D.S.G., 947 S.W.2d 516 (Mo. App. E.D. 1997). Followed by S.M. v. E.M.B.R. (In re C.M.B.R.), 332 S.W.3d 793 (Mo. 2011).

Where appointed counsel stipulates to wholesale admission of all reports and records, waives the right to cross examine authors of reports, calls no witnesses, offers no medical reports or other evidence on behalf of parents, and spent only eight hours on the case from start to finish, performance of counsel constitutes ineffective assistance to the parents at the TPR proceeding. In Interest of J.C., Jr., 781 S.W.2d 226 (Mo. App. W.D. 1989). Cited in Dissenting opinion in S.M. v. E.M.B.R. (In re C.M.B.R.), 332 S.W.3d 793 (Mo. 2011). Distinguished by I.R.S. v. Greene County Juvenile Office, 361 S.W.3d 444 (Mo. App. S.D. 2012). But see In Interest of S.T.W., 39 S.W.3d 517 (Mo. App. S.D. 2000). Cited by I.R.S. v. Greene County Juvenile Office, 361 S.W.3d 444 (Mo. App. S.D. 2012), (counsel not ineffective where counsel aggressively cross-examined witnesses and raised valid objections throughout trial).

If a parent makes a meritorious claim of ineffective assistance of counsel, the trial court should appoint new counsel to perfect the appeal for the parent after the TPR hearing. In Interest of C.D.M., 888 S.W.2d 725 (Mo. App. E.D. 1994). Followed by Herman v. M.H. (In the Interest of W.J.S.M.), 231 S.W.3d 278 (Mo. App. E.D. 2007). The failure of trial counsel to produce a witness statement did not constitute ineffective assistance of counsel where the subject matter of the statement was not significant in the trial court's ruling. Id.

Mother is denied effective assistance of counsel where: (1) counsel stood silently by and did not request a continuance, nor even a short recess in order to try to contact mother when mother failed to appear for the hearing; (2) counsel did not raise one objection during the juvenile officer's direct examination of the only witness, a social worker from Missouri Baptist Children's Home; (3) counsel's cross examination did not exceed a dozen questions and only three (3) of these concerned the voluntariness of mother's consent, which was a crucial issue at the hearing; (4) counsel had no evidence to present on behalf of mother; (5) counsel offered no argument or explanation on mother's behalf; (6) counsel did not reveal on what grounds he based his opinion that termination of the parental rights would be in mother's best interests. In Interest of J.M.B., 939 S.W.2d 53 (Mo. App. E.D. 1997). Distinguished by S.M. v. E.M.B.R. (In re C.M.B.R.), 332 S.W.3d 793 (Mo. 2011). Followed by C.V.E. v. Greene County Juvenile Office (In re V.J.B.), 330 S.W.3d 560 (Mo. App. S.D. 2010).

*265 *259 Ineffective assistance of counsel is not an authorized ground to vacate or set aside a judgment pursuant to Rule 74.06. In Interest of C.N.W., 26 S.W.3d 386 (Mo. App. E.D. 2000). Followed by J.J.P. v. Greene County Juvenile Office, 113 S.W.3d 197, 201 (Mo. App. S.D. 2003). Criticized by In the Interest of M.D.R., 124 S.W.3d 469 (Mo. 2004).

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Section 2.43 Juvenile Officer Meeting with the Court/Social Study and Investigation

Within 30 days after the filing of a petition for termination of parental rights, the juvenile officer shall meet with the court in order to determine that all parties have been served with summons. At this meeting, the juvenile officer shall also request that the court order the investigation and social study. If all parties required to be served have not been served, the court may, in its discretion, extend the time for service if the court finds service may be forth coming and that the best interests of the child would be served thereby. Sections 211.455.1 and 211.455.2, RSMo.

The social study and investigation shall be made by the juvenile officer, Children’s Division or a public or private agency authorized or licensed to care for children or any other competent person as directed by the court.

The written report shall be made to the court to aid the court in determining whether the termination is in the best interests of the child. It shall include such matters as the parental background, the fitness and capacity of the parents to discharge parental responsibilities, the child's home, present adjustment, physical, emotional and mental condition, and such other facts as are pertinent to the determination. Some circuits utilize a written report which is similar to a narrative social summary while other circuits use interrogatories for this purpose.

Parties and attorneys or guardians ad litem or volunteer advocates representing them before the court shall have access to the written report. All ordered evaluations and reports shall be made available to the parties and attorneys or guardians ad litem or volunteer advocates representing them before the court at least 15 days prior to any dispositional hearing. Section 211.455.3, RSMo. The social investigation does not have to be formally admitted into evidence or judicially noticed in order to be considered in a TPR proceeding. In Interest of S.J.G., 871 S.W.2d 638 (Mo. App. S.D. 1994). Cited by Greene County Juvenile Office v. B.D.W. (In re K.M.W.), 342 S.W.3d 353 (Mo. App. S.D. 2011). Further, it is not error to admit DFS termination studies and reports into evidence as such reports are required by statute. In Interest of S.J., 849 S.W.2d 608 (Mo. App. W.D. 1993). Followed by In re T.G., 965 S.W.2d 326 (Mo. App. W.D. 1998). Cited by A.P.K. v. Crawford County Juvenile Office (In the Interest of K.T.K.), 229 S.W.3d 196 (Mo. App. S.D. 2007). The reports of DFS may have attached thereto the reports of a private therapist which contains hearsay if said reports are offered as part of the mandated report under Section 211.455.3, RSMo. In Interest of T.G., 965 S.W.2d 326 (Mo. App. W.D. 1998). Cited by In the Interest of C.W., 211 S.W.3d 93 (Mo. 2007). Followed by In re L.N.D., 219 S.W.3d 820 (Mo. App. S.D. 2007). The social study and investigation should be considered by the court only on the issue of best interests if the report contains hearsay, unless another ground for admission of all or part of the report exists. In Interest of J.A.R., 968 S.W.2d 748 (Mo. App. W.D. 1998). Followed by JUVENILE OFFICER, Respondent v. O.O. (In re V.M.O.), 987 S.W.2d 388 (Mo. App. W.D. 1999). Cited by I.R.S. v. Greene County Juvenile Office, 361 S.W.3d 444 (Mo. App. S.D. 2012).

*267 Failure of the juvenile officer to meet with the court within thirty days after filing of the petition as required by Section 211.455 and failure to hold the dispositional hearing on the TPR petition within thirty days after the aforementioned meeting all as required by Section 211.459 would not constitute grounds for reversal absent a showing as to how the parent was prejudiced by the failure to have the meeting and to hold the trial on the TPR petition within thirty days after said meeting, and without prejudice to the complaining party, there would be no reversible error. In Interest of A.D.G., 23 S.W.3d 717 (Mo. App. W.D. 2000). Cited by Mo. Dep't of Soc. Servs. v. S.V. (In The Interest of A.M.S.), 272 S.W.3d 305 (Mo.App. W.D. 2008). Distinguished by In the Interest of C.W., 211 S.W.3d 93 (Mo. 2007); see contrary, In re A.H., 169 S.W.3d 152, 157 (Mo. App. W.D. 20015).

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Section 2.44 Dispositional Hearing

The "trial" in a termination of parental rights case is referred to in the statutes as a "dispositional hearing." Section 211.459, RSMo. Said “dispositional hearing” shall commence within 30 days of the meeting between the court and juvenile officer as required under 211.455 RSMo. This "dispositional hearing" is different than the dispositional hearing referred to in Section 211.181, RSMo.

At the dispositional hearing, the juvenile officer and any person on whom summons was served has the right and power to subpoena witnesses and present evidence. At the dispositional hearing, the court may require any and all investigating Children’s Division personnel connected with the particular case to testify without privilege and subject to the rules of cross-examination. Section 211.459.1, RSMo.

Due process requires that termination of parental rights occur only on grounds asserted in the petition. Failure to object to evidence offered that is beyond the scope of the pleadings results in automatic amendment of the pleadings to conform to the evidence and constitutes consent to try the applicable issues, but only where the evidence presented bears solely upon the unpleaded issue and not upon issues already in the case. Matter of S.L.N., 8 S.W.3d 916 (Mo. App. S.D. 2000). Cited by M.F. v. G.P.F. (In the Interest of S.R.F.), 362 S.W.3d 420 (Mo. App. S.D. 2012).

Section 211.447 does not mandate a speedy trial in a TPR case, nor does either the Sixth or Fourteenth Amendments to the United States Constitution, or Article I, Section 18(a) of the Missouri Constitution. In Interest of A.M.C., 32 S.W.3d 155 (Mo. App. W.D. 2000). Cited by Fort v. Greene County Juvenile Office (In the Interest of A.F.K.), 164 S.W.3d 149 (Mo. App. S.D. 2005) (however claim deemed abandoned on appeal by appellant's failure to cite authority in support).

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Section 2.45 Foster Parents' Rights at Dispositional Hearing

Where a child has been placed with a foster parent, with relatives or with other persons who are able and willing to permanently integrate the child into the family by adoption, if the court finds that it is in the best interests of the child, the court may provide the opportunity for such foster parent, relative or other person to present evidence for the consideration of the court. Section 211.464, RSMo. This statute does not, however, authorize the foster parents to participate in the TPR proceeding as parties. In Interest of D.L.C., 834 S.W.2d 760 (Mo. App. S.D. 1992). Cited by M.T. v. Lentz (In re N.L.B.), 212 S.W.3d 123 (Mo. 2007). Allowing participation by the foster parents as parties in the TPR proceeding taints the proceedings to such a degree that reversal is required. Id. The degree or extent of participation seems to be the issue which may result in a reversal. While Section 211.464, RSMo arguably authorizes the foster parents to be represented by counsel for the purpose of assembling and presenting evidence relevant to the grounds for termination which have been asserted in the petition for termination of parental rights, Section 211.464, RSMo does not authorize the trial court to grant foster parents the right to participate in a termination proceeding as full-fledged parties, nor does it authorize foster parents to present evidence alien to the termination issue. Id. at 768. Cf. In Interest of M.K.P., 616 S.W.2d 72 (Mo. App. W.D. 1981). Followed by D v. Nelson, 834 S.W.2d 760 (Mo. App. W.D. 1992). Cited by J.O. v. Taney County Juvenile Office (In the Interest of D.O.), 315 S.W.3d 406 (Mo. App. S.D. 2010), where a termination order was affirmed. In M.K.P., the Western District held that allowing the foster parents to intervene was error, however, since the foster parents' attorney was not involved in the hearing, asked no questions, and made no plea to the court, and because the foster parents did not inject the false issue of fitness of the foster parents, the termination order could be affirmed. In D.L.C., supra, 834 S.W.2d at 760 See earlier notation, the foster parents' attorney conducted extensive cross examination of all witnesses, presented evidence, made numerous objections and cited and argued law to the trial court. This amount of participation by the foster parents was held to constitute error. The trial court is cautioned to carefully limit participation in the proceedings by foster parents in accordance with the foregoing principles.

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Section 2.46 Witness Fees/Mileage

The witnesses are entitled to witness fees and mileage as in civil cases. Section 211.459.1, RSMo.

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Section 2.47 Record of Proceedings

Stenographic notes or an authorized recording is required. Section 211.459.2, RSMo.

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Section 2.48 Rulings on Motions for Continuance

Due process rights are not violated by the refusal of the trial court to grant a continuance to a parent where the parent has court appointed counsel, but for a period of over two months has failed to meet and cooperate with appointed counsel. In Interest of F.L.M., 839 S.W.2d 367 (Mo. App. E.D. 1992). Cited by In the Interest of J.S.W., 295 S.W.3d 877 (Mo. App. E.D. 2009).

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Section 2.49 Judicial Notice of Court Files

It is permissible for the trial court to judicially notice the legal files of children before it on the termination of parental rights case. Thus, where the court took judicial notice of the legal files, which reflected acts of physical and sexual abuse, and the juvenile officer adduced evidence that the acts were severe, the juvenile officer was not required to show any further evidence of those elements at the termination proceeding. In Interest of L.M., 807 S.W.2d 195 (Mo. App. W.D. 1991). Cited by JUVENILE OFFICER v. R.D.K. (In re R.K.), 982 S.W.2d 803 (Mo. App. W.D. 1998).

The court may take judicial notice of the legal files concerning previous children in a proceeding to terminate a parent's parental rights to another child where the mother was represented by counsel and had opportunity to review, impeach or explain the evidence against her in the prior proceedings. In Interest of C.M.W., 813 S.W.2d 331 (Mo. App. W.D. 1991). Followed by In the Interest of A.A.T.N., 181 S.W.3d 161 (Mo. App. E.D. 2005). Cited by I.R.S. v. Greene County Juvenile Office, 361 S.W.3d 444 (Mo. App. S.D. 2012).

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Section 2.50 Prior Testimony Admissible - When

Where a child's testimony was given with the same parties and a fair opportunity for cross examination, and the child was unavailable due to psychological as well as physical problems for the termination of parental rights hearing, the trial court may admit into evidence in the TPR hearing the child's prior testimony. In Interest of S.J., 849 S.W.2d 608 (Mo. App. W.D. 1993). Followed by In re T.G., 965 S.W.2d 326 (Mo. App.  W.D. 1998). Cited by A.P.K. v. Crawford County Juvenile Office (In the Interest of K.T.K.), 229 S.W.3d 196 (Mo. App. S.D. 2007).

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Section 2.51 Special Hearsay Rules and Anatomical Dolls

Testimony regarding the children's actions with anatomically correct dolls is admissible in a TPR proceeding to corroborate evidence that the children have been sexually abused. In Interest of A.M.K., 723 S.W.2d 50 (Mo. App. E.D. 1986). Cited by E.P. v. A.M. (In the Interest of Baby Girl P), 159 S.W.3d 862 (Mo. App. W.D. 2005). See also M.E. v. M.E.E., 715 S.W.2d 572 (Mo. App. E.D. 1986). Cited by In Interest of W.D.L., 829 S.W.2d 574 (Mo. App. W.D. 1992) (testimony as to statements and conduct exhibited by children during interview where anatomically correct dolls were utilized does not constitute hearsay in TPR hearing since it is not used to prove the matter asserted, but is used to allow the court to draw inferences based upon the fact that children possessed unusually advanced sexual knowledge).

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Section 2.52 Privileged Communications

No legally recognized privileged communication, except that between priest, minister or rabbi and parishioner and attorney-client, shall constitute grounds for excluding evidence at any proceeding for the termination of parental rights.

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Section 2.53 Order of Termination

The court may issue an order terminating parental rights if, in a contested case, the court finds that one or more of the grounds for a contested termination of parental rights as set forth in Section 211.447, RSMo exists and that the termination is in the best interests of the child. The court may enter an order terminating parental rights by consent if it finds that the parent has consented to the termination of parental rights pursuant to Section 211.444, RSMo and that termination is in the best interests of the child.

It is suggested that the order of termination be framed as a findings of fact, conclusions of law and judgment. The court should enter specific factual findings as to the history of the case and specific facts in support of each and every element required for the type of termination being heard.

In its order of termination, the court, if parental rights are terminated, shall transfer legal custody of the child to either (1) the Children’s Division (2) a private child-placing agency (3) a foster parent, relative or other person participating in the proceedings pursuant to Section 211.464, RSMo or (4) any other person or agency the court deems suitable to care for the child. Section 211.477.1 (1)-(4), RSMo.

If only one parent consents or if the conditions specified in a contested termination are found to exist as to only one parent, the rights of only that parent with reference to the child may be terminated and the rights to the other parent shall not be affected. Section 211.477.2, RSMo.

The court should carefully consider whether the rights of one parent should be terminated leaving the rights of the other parent intact. Factors the court may wish to consider in deciding whether this is a good idea in the particular case would include whether the parents still have a relationship with each other or are still living together, whether the child will have contact with both parents by virtue of the living arrangements chosen by the custodial parent, and the extent of any such contact, the need to continue collecting child support and any other relevant factors.

The court may order termination of parental rights whether or not the child is in an adoptive placement or whether or not an adoptive placement is available for the child. Section 211.477.3, RSMo. Again, the court should carefully consider whether or not termination is advisable if an adoptive placement is not available. Although the court may order termination if an adoptive placement is not available, termination under such circumstances should be approached carefully given the fact that the child will have no parent, there will be no person from whom support can be collected, and any other relevant factor.

If, after the dispositional hearing, the court finds that one or more of the grounds set out in Section 211.447, RSMo exists, but that termination is not in the best interests of the child because the court finds the child would benefit from the continued parent-child relationship, or because the child is 14 or more years of age and objects to the termination, the court may:

1. Dismiss the petition and order that the child be returned to the custody of the parent.
2. Retain jurisdiction of the case and order that the child be placed in the legal custody of the parent, the division, a private child-caring or placing agency, a foster parent, relative or other suitable person who is able to provide long term care for the child. An order entered under this subdivision shall designate the period of time it shall remain in effect and a mandatory review shall be held by the court not later than six months thereafter. The court shall also specify what residual rights and responsibilities remain with the parent. Any individual granted legal custody hereunder shall exercise the rights and responsibilities personally unless otherwise authorized by the court.
3. Appoint a guardian under the provisions of Chapter 475, RSMo.

All orders for termination of parental rights shall recite the jurisdictional facts, factual findings on the existence of grounds for termination and the best interests of the child.

It is essential that, in drafting the findings of fact, conclusions of law and judgment terminating parental rights, that the findings of fact contain findings on the "aggravating factors" set forth in Section 211.447.5(2) and (3), RSMo. In the event the subject matter of any of the "aggravating factors" is not relevant to the disposition of the case, a finding shall still be made to that effect stating why a particular aggravating factor is irrelevant (e.g., no evidence presented, insufficient evidence presented, evidence not credible, etc.). See In Interest of J.M., 789 S.W.2d 818 (Mo. App. 1990). Supported by In Interest of E.K. and In Interest of E.K., 860 S.W.2d 797 (Mo. App. E.D. 1993). Cited by In the Interest of K.E., 947 S.W.2d 468 (Mo. App. E.D. 1997). See also In Interest of T.A.S., 32 S.W.3d 804 (Mo. App. W.D. 2000). Followed by Juvenile Officer v. RLO (In the Interest of ASO), 52 S.W.3d 59 (Mo. App. W.D. 2001). Cited by In the Interest of C.W., 211 S.W.3d 93 (Mo. 2007) (findings on "aggravating factors" minimally sufficient where the court adopts findings thereon from earlier orders). As a practice pointer, it is a better practice to set forth these findings in the TPR judgment.

If the trial court grants a termination of parental rights on a ground not alleged in the petition, the judgment granting TPR will be reversed and the case remanded. In Interest of H.R.R., 945 S.W.2d 85 (Mo. App W.D. 1997). Distinguished by S.M.H. v. T.H., 160 S.W.3d 355 (Mo. 2005). Cited by M.F. v. G.P.F. (In the Interest of S.R.F.), 362 S.W.3d 420 (Mo. App. S.D. 2012). However, failure to object to evidence offered beyond the scope of the pleadings results in automatic amendment of the pleadings to conform to the evidence and constitutes consent to try the applicable issues but only where the evidence presented bears solely upon the unpleaded issue and not upon issues already in the case. Matter of S.L.N., 8 S.W.3d 916 (Mo. App. S.D. 2000). Cited by M.F. v. G.P.F. (In the Interest of S.R.F.), 362 S.W.3d 420 (Mo.App. S.D. 2012).

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Section 2.54 Finality of the Order

The order terminating parental rights becomes a final order 30 days from the date of its entry for purposes of and subject to the rights of appeal. Section 211.447.5, RSMo. See also Section 211.261, RSMo and Supreme Court Rule 120.01.

Where a Chapter 211 termination of parental rights proceeding is combined with a Chapter 453 adoption proceeding, an appeal may be taken after termination of parental rights where appellant seeks only to review the completed termination of parental rights and not any action taken pursuant to the transfer of custody or adoption. In Interest of D.S.G., 947 S.W.2d 516 (Mo. App. E.D. 1997). Followed by S.M. v. E.M.B.R. (In re C.M.B.R.), 332 S.W.3d 793 (Mo. 2011).

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Section 2.55 Effect of Termination of Parental Rights

In Missouri, there is no legal distinction between parental rights and parental obligations. Thus, a court may not order continued financial support of children by parents whose rights have been terminated. In Interest of M.R., 894 S.W.2d 193 (Mo. App. E.D. 1995). Cited by In re J.D. v. L.D., 34 S.W.3d 432 (Mo. App. W.D. 2000).

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