                       MISSOURI COURT OF APPEALS
                           WESTERN DISTRICT


IN THE INTEREST OF: S.R.R.,               )
D.J.R., AND T.L.R.;                       )   WD78651 and
                                          )   WD79074
                   Plaintiffs             )
                                          )   OPINION FILED:
JUVENILE OFFICER,                         )
                                          )   May 17, 2016
                   Respondent,            )
   v.                                     )
                                          )
T.R. (FATHER),                            )
                                          )
                   Appellant.             )


            Appeal from the Circuit Court of Jackson County, Missouri
                       Honorable John M. Torrence, Judge

                              Before Division Two:
    Victor C. Howard, P.J., Thomas H. Newton, and Karen King Mitchell, JJ.


        T.R., Father, appeals the April 21 and September 23, 2015, juvenile court

judgments confirming the Commissioner’s findings and recommendations that

adopted permanency plans as to his children, S.R.R., D.J.R., and T.L.R. The juv enile

officer has filed motions to dismiss in both appeals, which were consolidated before

this Court. We took the motions with the appeals. We grant the motions and dismiss

the consolidated appeal.

        Father pleaded guilty to second-degree statutory rape in August 2011 and was

serving his sentence in July 2013 when the Jackson County Juvenile Officer filed
petitions in family court alleging that S.R.R. (a daughter born on March 22, 2006),

D.J.R. (a son born on February 4, 2003), and T.L.R. (a son born on A ugust 4, 2011)

were without proper care, custody, and support. Mother had allegedly neglected the

children and allowed them to have contact with her fiancé, a registered sex offender

who had at one time pleaded guilty to first-degree endangering the welfare of a child.

In September 2013, the juvenile court issued an order following an adjudication

hearing, sustaining the allegations as to Mother and ordering individual counseling

for Mother and the two older children. The court appointed counsel for Fath er, who

has been represented by counsel since then.          In October 2013, the juvenile court

issued a judgment sustaining the allegations as to Father and ordering that contact

with him “shall be as therapeutically recommended.” The children were placed in

Mother’s custody subject to a number of conditions. In September 2014, the juvenile

court issued an order following a case review, committing the children to the state’s

custody for placement. 1        Mother was allowed supervised visits with certain

conditions, and “[c]ontact with the father shall be as therapeutically recommended.”

The stated goals were “permanency and reunification.”

       The recommended disposition and goals did not change until the juvenile court

entered the April 21, 2015, order and judgment, terminating the prior disposition.

This order followed a case review and hearing during which the court found that

Mother failed to participate regularly in therapy and had unstable housing, while

Father “remains incarcerated.” The new goal was “terminati on of parental rights and

adoption” because “reunification in the next 90-120 days is not feasible” and “[t]he


1
  The children had been placed in March 2014 with the couple who later expressed an interest in
adopting them.

                                              2
children have been under jurisdiction 21 months.”                    The court allowed Mother

supervised visits and again stated that Father’s contact “shall be as therapeutically

recommended.” During the hearing on which this order was based, the children’s

therapist testified that she had received two letters from Father to the children, but

did not share them, because the letters contained, for the most part, qu otations from

scripture, rather than questions about the children’s lives or information about what

Father was doing. According to the therapist, the children were angry about Mother’s

recent loss of housing, and the letters could have stirred up addition al emotional

problems. The therapist also testified that “when I’ve talked with the children about

their dad, they just kind of give me this blank look. They don’t say anything. They

don’t have much of a reaction to their – about talking about their father. So I didn’t

want to stir anything up at the time.” 2 The family’s caseworker testified that Father’s

expected release date was February 2016. The court’s order indicated that the next

case-review hearing would be held in September 2015.

          Father appealed the April 21, 2015, order and judgment to this Court. The

juvenile officer filed a motion to dismiss, asserting that the April 20, 2015, hearing

was a permanancy-planning review under section 210.720 and that the order was not

appealable. 3 In his opposition, Father argued that the court’s judgment was final or

that he had brought the appeal “in a good faith attempt to change the law.” He asked




2
 The therapist also testified that, on further review, she had found parts of the letters that she could
share and that she intended to do so that weekend during a family session. She noted as well that she
was working with the family’s caseworker to provide direction for Father on better communicating
with his children in the future.
3
    Statutory references are to RSMo 2000 and cumulative supplements, unless otherwise indicated.

                                                   3
this Court to re-examine In re L.E.C., 94 S.W.3d 420 (Mo. App. W.D. 2003), and to

“permit the appeal of this final permanancy plan judgment.”

      Thereafter, the juvenile court conducted another case -review hearing and

entered an order and judgment on September 23, 2015.           According to this order,

“[t]he permanency plan is adoption.”        The court also stated, “Childr en’s Division

shall conduct an adoption staffing within 30 days from the date of this order.” The

court found, among other matters, that Mother had not been participating in

individual therapy, “and this has been a factor in preventing reunification.” Th e court

also found, “Given mother’s history, her participation in therapy is essential so that

she is able to demonstrate an ability and understanding of the importance of

protecting her children from men who may represent a threat to them. The mother

has no suitable residence for the children at this time.”      Supervised visits for the

mother were allowed, and another permanency hearing was scheduled for January

2016. Father is not mentioned in this court order, but his counsel was present during

the September 15, 2015, hearing on which the order was based. Counsel reminded

the juvenile court in closing that Father was set to be released in February 2016 and

that he was not the focus of the hearing.

      Father filed an appeal to this Court from the September 23, 2015, order and

judgment. Again, the juvenile officer filed a motion to dismiss, arguing that the order

appealed from was not final and arose from a case -review hearing conducted under

section 210.720. The juvenile officer also noted that, while the permanency goal had

been changed to adoption in April 2015, it could be changed back to reunification. In

this regard, the juvenile officer stated that Father has the opportunity, once released



                                             4
from incarceration, to “find stable housing, re-establish a relationship with his

children and make substantial progress in the time before a termination action is

filed.” In his opposition, Father relied on the same arguments raised in his opposition

to the motion filed after he appealed the April 21, 2015, order and judgment.

                                          Legal Analysis

       Although we do not reach the merits of the consolidated appeal, we recite

Father’s points on appeal to further support our resolution of the juvenile officer’s

motions to dismiss. Those points are whether the juvenile court erred because the

evidence was insufficient to support a finding that (1) abandonment grounds existed

for termination under Missouri law, and (2) termination of Father’s rights was in the

children’s best interest. 4 In arguing both of his appeals, Father asks that we apply

standards and case law used in reviewing a judgment that terminates parental rights,

which standards, under Chapter 211 of the Missouri Revised Statutes, are particularly

inappropriate for reviewing permanency-plan findings made following a section

210.720 hearing. If the juvenile court had terminated Father’s parental rights, we

would be constrained to agree that the evidence was insufficient to support that

determination. The juvenile court, however, conducted permanency hearings, and the

evidence introduced pertained to the questions before the court in establishing a

permanency plan, which is the goal of a permanency hearing.                       As such, factors




4
  In his second brief addressing points specific to his second appeal, Father similarly argues that the
evidence during the September 2015 permanency hearing was insufficient for the trial court to find
that he had abandoned the children or that termination was in their best interests. In fact, while
Father’s counsel was present during this case-review hearing, no evidence was introduced of
anything other than Mother’s living arrangements and participation or lack thereof in the counseling,
visitation, and therapy the Children’s Division offered.


                                                  5
different from those in termination proceedings are at issue. 5 The evidence would

likely never be sufficient during a permanency hearing to justify termination of

parental rights, which occurs, if at all, following hearings conducted under sections

211.447-211.490.

       In In re L.E.C., this Court addressed the same issue on appeal underlying

Father’s appeal here: “that the trial court erred in changing the permanency plan

from reunification to adoption.” In re L.E.C., 94 S.W.3d at 424. We explained at

some length that lacking a common-law right of appeal or a statutory right to appeal a

section 210.720 order, a litigant cannot rely on section 512.020, the general statute

relating to civil appeals, because a change in a permanency plan “is not in itself a

final adjudication.”     Id. at 425.     Rather, we stated, “It is, as the name implies, a

‘plan,’ not a result, although certain changes are implemented in connection with the

5
  The Legislature has required that the court consider during a permanency hearing “all relevant
factors, including”:

       (1) The interaction and interrelationship of the child with the child’s foster parents,
           parents, siblings, and any other person who may significantly affect the child’s
           best interests;
       (2) The child’s adjustment to his or her foster home, school and community;
       (3) The mental and physical health of all individuals involved, including any history
           of abuse of any individuals involved . . .; and
       (4) The needs of the child for a continuing relationship with the child’s parents and
           the ability and willingness of parents to actively perform their functions as
           mother and father for the needs of the child.

§ 210.720.2.

       The purpose of a permanency hearing is stated as follows:

       [To determine] in accordance with the best interests of the child a permanent plan
       for the placement of the child, including whether or not the child should be
       continued in foster care or whether the child should be returned to a parent, guardian
       or relative, or whether or not proceedings should be instituted by either the juvenile
       officer or the division to terminate parental rights and legally free such child for
       adoption.

§ 210.720.1 (emphasis added). In contrast, the court’s focus during a termination hearing is
primarily on the parent’s conduct vis-à-vis the child and his or her fitness to parent. § 211.447.


                                                 6
plan. The jurisdiction of the Circuit Court continues, however, and is one of ongoing

management.” 6 Id. We further explained that allowing review of a section 210.720

order “would cause inefficiency and lengthen the time needed to address the ultimate

issue of parental rights termination.” Id. We concluded that the permanency-plan

order is non-appealable. Id. at 426. More recently, the Eastern District relied on In

re L.E.C. in dismissing a father’s appeal from a permanency-plan order entered in

Washington County. In re T.G.O., 360 S.W.3d 355, 358 (Mo. App. E.D. 2012). 7

       Father eloquently argues in his opposition to the juvenile officer’s motion to

dismiss that “[a] Permanency Plan Order is a final judgment due to the nature of

juvenile proceedings, and often operates as the detonating trigger for termination of

parental rights.”     He also cites Medicine Shoppe International, Inc. v. Director of

Revenue, 156 S.W.3d 333, 334-35 (Mo. banc 2005), as authority for the proposition

that a party may seek re-examination and overruling of the court’s prior interpretation

of a statute. While the Missouri Supreme Court acknowledged t hat “adherence to

precedent is not absolute, and the passage of time and the experience of enforcing a

purportedly incorrect precedent may demonstrate a compelling case for changing

course,” it upheld its prior interpretation of a taxation statute, noting that it had been

applied by the state and corporate taxpayers for twenty -one years and was

“undisturbed by subsequent legislation.” Id. at 335, 338-39.



6
  This observation is borne out here, as Father first appealed from an order he characterized as
“final,” and yet the court conducted another case review after issuing it.
7
  The Southern District cited In re L.E.C. as authority this year when it dismissed a grandfather’s
appeal from a denial of his motion for relative placement of a juvenile under section 210.565.1. In re
A.N.L. v. Maries Cnty. Juvenile Office, No. SD33670, 2016 WL 530737, at *2, *4 (Mo. App. S.D.
Feb. 10, 2016) (stating, “The right to appeal is purely statutory. An appeal lacking a statutory basis
confers no authority upon an appellate court except to dismiss the appeal.”).

                                                  7
       Father appeals broadly to the protection afforded parental rights under the

Constitution and claims that due process guarantees the right to be heard “at a

meaningful time.” He contends that permanency hearings determine the direction of

future proceedings and “can increase the risk that the natural family will be

destroyed.”    Father further argues that “denying a parents’ [sic] right to appeal a

permanency plan judgment directly contradicts the Missouri standard regarding the

paramount concern of the best interests of the child.” As to this concern, he claims

that delaying review of a permanency plan “increases the risk that children form deep

and lasting bonds with temporary caregivers, only to be ripped from this comforting

grip and returned to their natural, yet foreign, homes upon appellate decision.” Given

these consequences, he urges this Court to find that appeal from a permanency-plan

order is permitted under section 512.020 as a final judgment and states that “no legal

rationale exists to require deferral of . . . appellate review until termination of

parental rights proceedings are formally initiated.” 8

       We disagree. Sound precedential authority provides that legal rationale, has

done so for thirteen years, was confirmed as recently as February of this year, and has

remained undisturbed by legislative action in the interim. Father’s policy arguments

are better directed toward the General Assembly, which can decide, based on

empirical evidence, whether parental rights and a child’s best interests are so

jeopardized by a permanency-plan order that immediate appeal is required to protect



8
  Father also asserts that the Family Court Commissioner’s findings and recommendations were
“subsequently adopted and ordered by the District Judge pursuant to R.S.Mo., Chapter 211, Section
029.” We would note that section 211.029, to the extent that it m ay apply to proceedings under
Chapter 210, merely provides the right to challenge a commissioner’s findings and recommendations
by filing a motion for a juvenile-court hearing.


                                               8
those rights and interests. As indicated above, Father challenges the order as if it

were a termination of parental rights. But termination standards are simply inapt as

guidance for a reviewing court that has been asked to consider the sufficiency of

evidence introduced during a permanency hearing. Until the Legislature changes the

goal of a permanency hearing or the factors the juvenile court is to consider in

establishing a permanency plan that focuses on adoption rather than reunification,

Chapter 211 termination criteria cannot provide the foundation for appellate review.

Father has not made a “compelling case for changing course.”

        Father relies on his particular circumstances to argue that the juvenile court

never heard evidence as to his fitness to parent the children and that the only barrier

to him acting as a parent is his incarceration, which was due to end in February 2016.

He claims as well that incarceration does not constitute abandonment which is

defined as “a voluntary and intentional relinquishment of the custody of the child to

another.” According to Father, his letters, efforts to seek representational counsel,

and pursuit of these appeals all demonstrate his intent to continue the parent -child

relationship. 9

        Because such arguments go to the merits of Father’s appeal, we decline to

address them other than to observe that the permanency plans here demonstrate that

the juvenile court, despite changing the goal from reunification to adoption,

continued to allow for the children’s interaction with the natural parents and left the


9
  Father cites In re Z.L.R., 306 S.W.3d 632, 635-36 (Mo. App. S.D. 2010), and In re J.M.S., 83
S.W.3d 76, 83-84 (Mo. App. W.D. 2002), to support his claim that his efforts were sufficient to show
his intent to continue the parent-child relationship. The fathers in the cited cases did far more to
meet their statutory obligations to provide their children with a continuing relationship, including
frequent cards and letters, phone calls, and some financial support given either by the fathers or their
relatives in the form of cash, clothing, toys, or gifts.


                                                   9
door open for Father to demonstrate his continuing interest in his children after his

release from incarceration and before a termination petition is filed.                      We would

further note that the children had been placed with a couple in March 2014, when

Father had already been in prison for nearly three years. 10                     The only evidence

showing that he attempted to remain in contact with the children consisted of two

letters that a therapist had concerns about sharing. He claims that he remained in

touch with the Children’s Division and therapist. If that is the case, he should have

known that Mother was unable to properly house the children and lived with men

with whom she was so unfamiliar that she did not even know their last names. Father

appears to have been content for nearly two of the five years he was imprisoned to let

the state and temporary caregivers take care of his children.

                                             Conclusion

        On the basis of well-reasoned precedent that we decline to overturn, we

conclude that the orders from which Father appeals, rendered under section 210.720,

are not appealable. Accordingly, we dismiss the consolidated appeal.



                                                         /s/ THOMAS H. NEWTON
                                                         Thomas H. Newton, Judge


Howard, P.J., and Mitchell, J. concur.




10
   Father’s incarceration coincides with his younger son’s first five years of life. He is essentially a
complete stranger to this child. Still, Father has the opportunity to establish a relationship with all of
his children on his release from incarceration. Because a termination petition looks to parental
conduct occurring six months preceding its filing, he has not lost his opportunity to demonstrate his
intent to continue the parent-child relationship. § 211.447.5.

                                                   10
