In Re the Interest of:    )
)  No. JV 98-01480
BLAZE A. SERGHEYEV   )  No. TR 01-00061
)
      Born: 10/2/98    Sex: Male  )  Life No. 140811

FATHER'S MOTION TO AMEND JUDGMENT
WITH SUPPORTING SUGGESTIONS

COMES NOW the Father Nehmo Sergheyev pursuant to Missouri Rule of Civil
Procedure 78.04, and moves this Court to reconsider/amend its Judgment of
December 20, 2002.  Father seeks reconsideration/amendment because R.S.Mo. §
211.447.2(1), the sole statutory basis for the Court's termination of Father
's parental rights, unconstitutionally substitutes the passage of time for a
finding that the parent is unfit.  In support of his motion, the Father
states the following:
FACTUAL BACKGROUND
Blaze Sergheyev ("Child") has been under the jurisdiction of the courts
almost since his birth on October 2, 1998.  He was taken from the parents
because his mother Susan Sergheyev ("Mother") used methadone, and the Child
was born addicted to methadone.  On March 24, 1999, the Juvenile Officer
filed its Second Amended Petition for care and treatment.  The Juvenile
Court on April 20th, 1999 found that Child was in need of care and
treatment, and ordered Child placed in Foster Care.  The Court also ordered
the parents to complete a substance abuse program, to complete parenting
classes, and to have only supervised contact with the Child.  Father
completed the program and has had supervised contact with the child since
then.  Child remained in Foster Care.

On May 17, 2001, DFS petitioned to terminate the parental rights of both
parents.  While awaiting a hearing on the Petition, the Child remained in
Foster Care.  On August 9, 2001, two days after the foster parents moved to
adopt the Child, DFS filed a motion for Review of Placement and Permission
to Move Child to The State of Georgia.  The court granted the motion the
next day, even before hearing any response from Father.  By Court order, the
Child remained in foster care in Georgia, and Father was allowed only
periodic visitation.
Finally, nine months after the filing of the Petition, the matter came for
hearing on February 5, 6, 7, and 21, 2002.  At the end of the proceeding,
the Court announced that it would not terminate Father's parental rights.
In its Judgment of June 20, 2002, the Court terminated the Mother's rights,
but in a separate judgment of June 13, 2002, the Court found that
termination of Father's rights was not in the best interests of the Child.
The Court also found that DFS had failed to prove any statutory basis for
terminating Father's rights, except that the Child had been in Foster Care
for 15 of the previous 22 months.  The Court retained jurisdiction of the
case "for the purpose of requiring further efforts to accomplish
reunification."  The Child remained in Foster Care, with supervised and
unsupervised visitation by the Father.
Then, taking a second bite at the apple, DFS and the guardian ad litem again
sought to terminate Father's rights.  Despite positive visits between Father
and son, DFS and the G.A.L. on October 29, 2002, filed a Joint Motion for
Termination of Parental Rights.  Even in that Motion, the parent aid
indicated that:
· "The visits go well between Nehmo and Blaze.  They enjoy being together.
Nehmo lets Blaze be a little boy . . . ."

· "My concerns, since the visits have been at Nehmo's house, are not with
Nehmo and Blaze.  They do fine together."

The matter came for hearing on December 12, and on December 20, 2002, this
Court reversed its June ruling, finding that termination was in the best
interests of the Child.  Once again, the Court found that DFS had failed to
prove any statutory basis for terminating Father's rights.  The Court did
not find that Father was unfit.  The statutory basis for termination was
only that the Child had been in Foster Care for 15 of the previous 22
months.  Because standing alone, the 15/22 months time period is an
unconstitutional basis for terminating Father's rights, Father moves this
Court to amend its Judgment.
DISCUSSION
The sole basis for the Court's finding that Father's parental rights should
be terminated was the passage of time.  Basing its finding on R.S.Mo. §
211.447.2(1), the Court found that because the Child has been in foster care
for at least fifteen (15) of the most recent twenty-two (22) months, Father'
s constitutional rights could be severed.  The State "failed to prove by
clear, cogent and convincing, evidence of the remaining statutory grounds
for termination alleged in the petition against the father."  See Order
(December 20, 2002) at 3.  By allowing the State to terminate the Father's
rights based solely on the passage of time, R.S.Mo. § 211.447.2(1) and the
Court's Order violate the Father's substantive due process rights.  In re H.
G., 757 N.E.2d 864, 873-74 (Ill.  2001).  Therefore, the Court should
reconsider and/or amend its December 20 Order, and hold that the 15/22
months time period is an unconstitutional basis on which to terminate a
parent's constitutional rights, and that absent a showing of another
statutory basis for termination, Father's rights cannot be terminated.

Parents have a fundamental liberty interest in their relationship with their
children. Meyer v. Nebraska, 262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed.
1042 (1923) (the "liberty" protected by the Due Process Clause includes the
right of parents to "establish a home and bring up children" and "to control
the education of their own"); Pierce v. Society of Sisters, 268 U.S. 510,
534-535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (liberty interest includes the
right "to direct the upbringing and education of children under their
control."); Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d
511 (1978) ("We have recognized on numerous occasions that the relationship
between parent and child is constitutionally protected"); Prince v.
Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944) ("It is
cardinal with us that the custody, care and nurture of the child reside
first in the parents, whose primary function and freedom include preparation
for obligations the state can neither supply nor hinder.").   "The
fundamental liberty interest of natural parents in the care, custody, and
management of their child does not evaporate simply because they have not
been model parents or have lost temporary custody of their child to the
State."  Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95
(1982).

The magnitude of the State's infringement on a fundamental right is a
significant consideration in determining whether a statute will be struck
down as unconstitutional.  See Herndon v. Tuhey, 857 S.W.2d 203, 208
(Mo.banc 1993).  Here, the magnitude of the State's infringement on Father's
parental rights could not be higher.  "Termination of parental rights is an
exercise of awesome power, . . . tantamount to imposition of a civil death
penalty."  In re Parental Rights of J.L.N., 55 P.3d 955, 958 (Nev. 2002)
(quotations and citations omitted).  Its finality dictates that this power
should be used sparing, and only upon a finding that the parent cannot
adequately care for his or her children.  Troxel v. Granville, 530 U.S. 57,
68, 120 S.Ct. 2054, 2061 (2000); Quilloin v. Walcott, 434 U.S. 246, 255, 98
S.Ct. 549, 554, 54 L.Ed.2d 511 (1978), Santosky v. Kramer, 455 U.S. 745,
760, 102 S.Ct. 1388, 1398 (1982).   Infringement of this magnitude requires
strict scrutiny.  See Herndon, 857 S.W.2d at 208.
Strict scrutiny is the highest level of review and requires a compelling
government interest to justify intrusion into a fundamental right. In re
G.P.C., 28 S.W.3d 357, 365 (Mo.App. E.D. 2000).  Even where the state
demonstrates a compelling interest, the intrusion must be narrowly tailored
to fit the purpose so as to create the smallest intrusion possible. Id. at
365 (citing State ex rel. Coker-Garcia v. Blunt, 849 S.W.2d 81, 85
(Mo.App.1993) and Deaton v. State, 705 S.W.2d 70, 73 (Mo.App.1985)).
The Missouri procedure for terminating parental rights is set against this
Constitutional backdrop.  Thus, by Missouri statute, before it may terminate
parental rights, the Court must find by clear, cogent, and convincing
evidence that a statutory ground for termination exists.  In Re K.C.M., 85
S.W.3d 682, 689 (Mo. App. W.D. 2002).  Only then may the court consider the
best interests of the child.  Id. at 690; R.S.Mo. § 211.447.5.
In 1998, the General Assembly, in response to the federal Adoption and Safe
Families Act, see 1998 H.B 1822, amended the parental rights termination
statute to make the passage of time a statutorily sufficient basis to
terminate parental rights.  The new provision, codified at R.S.Mo. §
211.447.2(1) states:

Except as provided for in subsection 3 of this section, a petition to
terminate the parental rights of the child's parent or parents shall be
filed by the juvenile officer or the division, or if such a petition has
been filed by another party, the juvenile officer or the division shall seek
to be joined as a party to the petition, when:

(1) Information available to the juvenile officer or the division
establishes that the child has been in foster care for at least fifteen of
the most recent twenty-two months.

See also In re K.C.M. 85 S.W.3d 682, 694 (Mo. App. W.D. 2002) (holding that
15 of last 22 months in foster care sufficient to terminate parental
rights).  Inasmuch as the statute requires merely the passage of time -
during which the custody of the child may be outside of parent's control -
the statute is not narrowly tailored to achieve the state's goal.  It
therefore impermissibly infringes a  fundamental liberty interest and is
unconstitutional. In re H.G., 757 N.E.2d 864, 872 (Ill. 2001)
While the State undoubtedly has a compelling interest in protecting the
children of the State from harm and in identifying parents who pose a risk
to the safety and well-being of their children and are therefore unfit,
R.S.Mo. § 211.447.2(1) is not narrowly tailored to achieve that goal,
because it substitutes the passage of time for a finding of parental
unfitness. The Illinois Supreme Court agrees.  See In re H.G., 757 N.E.2d
864, 872 (Ill. 2001).  In In re H.G., the Court considered a similar
statute.  That statute, in response to the same federal mandate,  created a
rebuttable presumption of parental unfitness if the child had been in foster
care for 15 out of the previous 22 months.  The Court found that even this
presumption was unconstitutional:
The presumption of unfitness . . . is not merely tailored to the compelling
goal of identifying unfit parents because it fails to account for the fact
that, in many cases, the length of a child's stay in foster care has nothing
to do with a parent's ability or inability to safely care for the child but,
instead is due to circumstances beyond the parent's control.

In re H.G., 757 N.E.2d at 872.
The Missouri statute is even more draconian than the one the Illinois Court
struck down; the Missouri statute allows no rebuttal.  If the Child has been
in foster care for 15 of the previous 22 months - for whatever reason - the
Court may terminate the parent's rights.  Thus, R.S.Mo. § 211.447.2(1)
creates an irrebuttable presumption that the parent is unfit, and allows
termination of  parental rights on this basis alone, without a finding that
the parent is unfit.
Such an irrebuttable presumption is not narrowly tailored to protect
children from unfit parents.  It is merely a convenience whereby the State
can avoid its constitutional burden of demonstrating by clear, cogent and
convincing evidence that a parent is unfit, and instead can simply schedule
the termination hearing fifteen months out, knowing that the passage of time
will provide the necessary basis for termination.  The State's convenience
is insufficient to trample a parent's constitutional rights.
 CONCLUSION
R.S.Mo. § 211.447.2(1) is unconstitutional.  This Court's December 20
judgment relies solely upon it as a statutory basis for termination of
Father's parental rights.  Accordingly, this Court should amend its judgment
to find that the State failed to prove a constitutional basis for
terminating Father's parental rights, Father's parental rights should not be
terminated, and this Court should order renewed visitation so that the
Father can continue to maintain his constitutionally protected relationship
with his son.

Respectfully submitted,

SPENCER FANE BRITT & BROWNE LLP

__________________________________________
Michael C. Leitch  MO #50803
Katherine A. Hansen MO #52335
1000 Walnut Street, Suite 1400
Kansas City, MO 64106
Telephone: (816) 474-8100
Facsimile: (816) 474-3216

ATTORNEYS FOR FATHER

 CERTIFICATE OF SERVICE

I hereby certify a copy of the foregoing was served via U.S. Mail, postage
prepaid this 21st day of January, 2003, upon:

Nancy Melton [DFS]
103 N. Main, Suite 200
Independence, MO 64050
Attorney for DFS

Kathy Rogers
Office of the Guardian
Family Justice Center
625 East 26th Street
Kansas City, MO 64108
Guardian Ad Litem