March 01, 2011

Immigrant Mother’s Parental Rights Terminated Without Full Investigation

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re C.M.B.R., 2011 WL 265325 (Mo.).

Trial court should not have entered judgment on adoption petition and terminated immigrant mother’s parental rights without first ordering an investigation and reports to determine if termination was in child’s best interests and assess suitability of adoptive parents. Reversal and remand were required to allow the investigation to be conducted and reports to be submitted so the trial court would have full information before making a determination.

A mother, a Guatemalan citizen, entered the United States while pregnant in 2006. In 2007, the U.S. Department of Homeland Security-Immigration and Customs Enforcement raided the business where the mother worked and arrested her. Her child was seven months old at the time and was living at the home of the mother’s brother and his family.

After the arrest, the mother’s brother placed the child with the mother’s sister and her husband. When the mother’s sister could no longer care for the child, a local clergy couple who had been providing child care services took over the child’s care. The clergy couple visited the mother in jail to ask if she would agree to the child’s adoption by another couple they knew that had been approved to adopt by the local child welfare agency. The mother refused.

Despite the mother’s refusal, the clergy couple arranged visits between the adoptive couple and the child that gradually progressed to overnight visits. The adoptive couple eventually petitioned to terminate the mother’s rights and for a transfer of custody.

The mother was still in jail and, following a guilty plea to one count of aggravated identity theft, she was sentenced to two more years in jail and was ordered to be deported upon her release. Soon after her plea and sentencing, she was served with a summons and petition in the adoptive parents’ request for custody case. A day later, a hearing was set, but only the adoptive parents’ counsel and the child’s guardian ad litem were notified. The mother had not been appointed counsel and was not notified. Soon thereafter, she was transferred to a federal prison in West Virginia.

At the hearing, which the mother did not attend, the trial court transferred custody of the child to the adoptive parents. The next day, the mother sent the adoptive parents’ attorney a letter stating that she did not want her child to be adopted and instead wanted her to be placed in foster care. She also requested visitation.

The trial court appointed counsel for the mother and granted the mother’s counsel’s request for an extension to file an answer to the termination of parental rights, transfer of custody, and adoption petition. At the trial on the petition, testimony was taken by the adoptive parents, the clergy couple and other witnesses.

The mother’s attorney did not call any witnesses on the mother’s behalf but did cross-examine the adoptive parents and their witnesses. He also submitted a letter from the mother stating she had someone in Guatemala who was willing to care for the child. He also argued that the mother’s incarceration alone could not justify terminating her parental rights.

The trial court terminated the mother’s parental rights and approved the adoption. The trial court stated that from the time of her arrest through the trial the mother made no effort to locate the child even though she should have known where the child was. It found the mother’s consent was not needed since she had willfully abandoned the child and it was in the child’s best interests to terminate the mother’s rights and free her for adoption. The mother appealed.

The Supreme Court of Missouri reversed and remanded for a new trial. The court found the trial court erred by entering judgment on the adoption petition and terminating the mother’s parental rights without complying with statutory investigation and reporting requirements.

Missouri statute mandates an investigation and written report after a petition to terminate parental rights is filed to decide if the termination is in the child’s best interests. When the adoptive parents sought termination of the mother’s parental rights, the court should have ordered an investigation and social study. This failure was reversible error amounting to a manifest injustice since the reports inform the trial court about the parent’s background and fitness to care for the child and other facts to help in its decision. Without this information, the court was not fully briefed and its judgment was unjust and required reversal.

Missouri statute also requires that an adoption decree may not be entered until the juvenile court receives and reviews written reports about the adoptive parents. An investigation and report are required and may only be waived if the child is the natural child of one of the adoptive parents or the natural parents have consented to adoption. A post-placement assessment six months after a child is placed in the custody of the adoptive parents is also required.

In this case, the trial court received a report about the adoptive parents’ fitness to be foster parents, not adoptive parents, and a one-page update to the adoptive home study. Neither report addressed the adoptive parents’ fitness to be adoptive parents or evaluated the adoptive parents after the child’s placement with them. Therefore, the trial court did not comply with the mandatory investigations and reports and lacked full information about the child’s best interests and the adoptive parents’ suitability to adopt. The supreme court held the trial court’s judgment without this information was unjust.

The supreme court held the trial court’s failure to comply with the mandatory statutory provisions for investigation and reports about the mother and adoptive parents required reversal. It also held the trial court’s judgment terminating the mother’s parental rights without her consent required reversal. The court also reversed all findings relating to the mother and ordered a new trial on all issues, including the finding of abandonment. At this trial, the mother would receive quality representation and would have the chance to present relevant evidence in her defense.