Blaze, Susan, Nehmo, Reply to Response to Appellant Brief
Nehmo Sergheyev
IN THE
MISSOURI COURT OF APPEALS
WESTERN DISTRICT
IN THE INTEREST OF:
B.A.S.
Juvenile
and
Juvenile Officer of Jackson County, Missouri
Respondents,
vs.
N.S. (Natural Father)
Appellant.
ON APPEAL
FROM THE CIRCUIT COURT OF
JACKSON COUNTY, MISSOURI,
FAMILY COURT DIVISION
REPLY BRIEF
Peter A. Raith #46752
The Raith Law Firm, P.C.
P.O. Box 412415
Kansas City, Missouri 64141
(816) 221-9474
(816) 221-1610 (facsimile)
TABLE OF CONTENTS
TABLE OF AUTHORITIES 2
I. REPLY TO RESPONDENT'S ARGUMENT IN OPPOSITION TO APPELLANT FATHER'S
POINTS RELIED ON I 4
A. Father's Objection to the Constitutionality of Section 211.447.2(1)
RSMo. In Post-Trial Motion Should Not Deprive the Father of Raising His
Constitutional Challenge on Appeal, When Considered Against the Backdrop
of Loss of Parental Rights to His Son. 4
B. Absent a Finding Under a Constitutionally Sound Section 211.447.2(1)
RSMo., the Trial Court Cannot Consider Evidence Regarding the Child's
Best Interest. 6
C. The 15 22 Month Rule Is a Substantial Constitutional Question Which
Requires Transfer to the Missouri Supreme Court. 9
II. CONCLUSION 10
III. CERTIFICATE OF COMPLIANCE WITH RULES 12
CERTIFICATE OF SERVICE 13
APPENDIX A-1
TABLE OF AUTHORITIES
CASES
C.S. v. Smith, 483 S.W.2d 790 (Mo. App. E.D. 1972) 8
Estate of Potashnick, 841 S.W.2d 714 (Mo. App. E.D. 1992) 9
Hanch v. K.F.C. National Management Corp., 615 S.W.2d 28 (Mo. 1981) 4
In Interest of R.H.S., 737 S.W.2d 227 (Mo. App. W.D. 1987) 4, 5
In re A.S., 38 S.W.3d 478 (Mo. App. S.D. 2001) 6, 7
In re C.D., 27 S.W.3d 826 (Mo. App. W.D. 2000) 6
In re H.G., 757 N.E.2d 864 (Ill. 2001) 6, 8
In re T.M., 6 P.3d 1087 (Okla. Civ. App. 2000) 7, 8
In re Ty M., 655 N.W.2d 672 (Neb. 2003) 7, 8
M.L.B. v. S.L.J., 519 U.S. 102 (1996) 9, 10
M.L.S. v. C.S., 710 S.W.2d 452 (Mo. App. E.D. 1986) 6
Phelps v. Sybinsky, 736 N.E.2d 809 (Ind. App. 2000) 7, 8
S.K.L. v. Smith, 480 S.W.2d 119 (Mo. App. E.D. 1972) 6, 8
White v. State, 430 S.W.2d 144 (Mo. 1968) 4, 5
STATUTES
ASFA, 42 U.S.C. §675 5
Section 211.447.2 RSMo 4, 5, 6, 9, 10
Section 211.447.5 RSMo 6, 7, 8
RULES
Missouri Supreme Court Rule 78.04 4
Missouri Supreme Court Rule 119.07b 4
I. REPLY TO RESPONDENT'S ARGUMENT IN OPPOSITION TO APPELLANT FATHER'S
POINTS RELIED ON I.
A. Father's Objection to the Constitutionality of Section 211.447.2(1)
RSMo. In Post-Trial Motion Should Not Deprive the Father of Raising His
Constitutional Challenge on Appeal, When Considered Against the Backdrop
of Loss of Parental Rights to His Son.
Missouri Supreme Court Rule 119.07b
Hanch v. K.F.C. National Management Corp., 615 S.W.2d 28 (Mo. 1981)
In Interest of R.H.S., 737 S.W.2d 227 (Mo. App. W.D. 1987)
White v. State, 430 S.W.2d 144 (Mo. 1968)
Trial counsel filed her Father's Motion To Amend Judgment With
Supporting Suggestions ("Father's Motion") on January 21, 2003. (L.F.
at 197-204.) Although Father's Motion was filed pursuant to Rule 78.04,
Respondent notes that Rules 110-128 apply in juvenile court matters
under Chapter 211, RSMo., and that Father's Motion was filed within 30
days after judgment. See Respondent's Br. at 47.
Missouri Supreme Court Rule 119.07b provides that the trial court
retains control over its judgments during the 30-day period after entry,
and may vacate, reopen, correct, or amend its judgment for good cause
within that time. See Rule 119.07b (emphasis added). Although Father's
Motion may have been inadvertently filed pursuant to Rule 78.04,
certainly the Juvenile Code, under Rule 119.07b, allows for such a
motion if filed within 30 days with good cause. In this case, the
finding of only one statutory ground for termination of the Father's
parental rights, not related to parental conduct or circumstances,
provides good cause for amendment.
As stated in Appellant's Brief, Father is certainly aware that a
defendant must raise a constitutional challenge at the "first
opportunity consistent with orderly procedure." See White v. State, 430
S.W.2d 144, 148 (Mo. 1968). Further, additional research suggests this
Court has rejected consideration of a constitutional challenge in
termination of parental rights cases when raised for the first time in
post-judgment motions. See In Interest of R.H.S., 737 S.W.2d 227, 233
(Mo. App. W.D. 1987).
The Court should consider an exception to that rule in this particular
case, however. The provisions and requirements under the Adoption and
Safe Families Act ("ASFA") resulted in a major overhaul of Missouri's
termination of parental rights statute effective 1998. See ASFA, 42
U.S.C. §675(5)(E). These changes included the 15-out-of-22-month rule
found in Section 211.447.2(1). Although other states have reviewed
their statutes regarding the constitutionality of the 15-out-of-22-month
rule, Missouri courts have yet to address this important issue. Because
the 15-out-of-22-month rule stands as the trial court's sole ground for
termination of Father's parental rights under Section 211.447.2 RSMo.,
the drastic and permanent effect upon the father/son relationship in
this case dictates constitutional review.
The Missouri Supreme Court has reviewed challenges based upon
constitutional infirmity even when raised on appeal for the first time,
under the plain error rule. See Hanch v. K.F.C. National Management
Corp., 615 S.W.2d 28, 33 (Mo. 1981) (court reviewed a constitutional
challenge under plain error, appellants challenge for the first time on
appeal, where the appellant claimed "an infringement upon the jealously
protected rights of free speech"). See also In re C.D., 27 S.W.3d 826,
829 (Mo. App. W.D. 2000) (stating plain error applies in cases where the
error substantially affects a party's rights such that it results "in
manifest injustice or miscarriage of justice."). Termination of Father'
s parental rights based upon a constitutionally unsound statute should
provide an adequate basis for plain error review. Also, this case
affords the Supreme Court a significant opportunity to review the
15-out-of-22-month rule, because in this case it stands by itself as the
basis for termination of Father's parental rights.
B. Absent a Finding Under a Constitutionally Sound Section 211.447.2(1)
RSMo., the Trial Court Cannot Consider Evidence Regarding the Child's
Best Interest.
In re A.S., 38 S.W.3d 478 (Mo. App. S.D. 2001)
In re H.G., 757 N.E.2d 864 (Ill. 2001)
M.L.S. v. C.S., 710 S.W.2d 452 (Mo. App. E.D. 1986)
S.K.L. v. Smith, 480 S.W.2d 119 (Mo. App. E.D. 1972)
Respondent notes that Missouri has a two-step procedure for terminating
parental rights. Respondent's Br. at 49. However, the
15-out-of-22-month rule must be considered separate and distinct from
the best interest determination pursuant to Section 211.447.5 RSMo.
Missouri courts have long held that without first finding a ground for
termination of parental rights, the issue of best interests of the child
does not come into play. See M.L.S. v. C.S., 710 S.W.2d 452, 453 (Mo.
App. E.D. 1986) (noting that "[o]nly after it had made a determination
that one or more of the statutory grounds exist may the trial court
breach the issue of the best interest of the child."); In re A.S., 38
S.W.3d 478, 483 (Mo. App. S.D. 2001) (stating that "[t]he juvenile court
may reach the issue of best of the child only after it has made a
determination that one or more of the statutory grounds for termination
exists.").
The fact that a determination under the 15-out-of-22-month rule is
independent and apart from the best interest argument is further shown
by the different standards of proof required for each. For the
15-out-of-22-month rule, evidence to a clear, cogent and convincing
standard is required. § 211.447.5 RSMo. As Respondent notes, the
standard of proof for evidence under the best interest argument,
pursuant to Section 211.447.5, is preponderance of the evidence.
Respondent's Br. at 57. This difference in evidentiary standard
demonstrates the separate and distinct nature of these two statutory
provisions.
Respondent argues that the statutory provisions should not be considered
independently, and that the two-step process including a best interest
evaluation protects a parent from the arbitrary harshness that may
result from the 15-out-of-22-month rule. Respondent's Brief at 49.
Reflecting their two-step argument, Respondent notes cases from three
states (Indiana, Nebraska and Oklahoma) whose courts recently construed
the 15-out-of-22-month rule as constitutional. See Phelps v. Sybinsky,
736 N.E.2d 809 (Ind. App. 2000); In re T.M., 6 P.3d 1087 (Okla. Civ.
App. 2000); and In re Ty M., 655 N.W.2d 672 (Neb. 2003). However, these
cases are distinguishable in that each of their respective states'
termination of parental rights statutes apply the same clear, cogent and
convincing evidentiary standard in proving both the 15-out-of-22-month
rule and whether termination serves the child's best interest. See
Phelps v. Sybinsky, 736 N.E.2d at 814; In re T.M., 6 P.3d at 1094; In re
Ty M., 655 N.W.2d at 688.
Unlike Indiana, Nebraska and Oklahoma, Missouri lowers the standard of
proof when considering a child's best interest, thus evidence (and
constitutionality) regarding the 15-out-of-22-month rule must be
considered on its own merits. Evidence as to a child's best interests
should not be allowed to save the constitutionality of the
15-out-of-22-month rule. To do so would elevate the best interest
portion of Section 211.447.5 to an unintended position where parental
rights may be terminated on the basis whether a child is be better off
in another home. This slippery slope has long been rejected by Missouri
courts. See S.K.L. v. Smith, 480 S.W.2d 119, 125-26 (Mo. App. E.D.
1972); C.S. v. Smith, 483 S.W. 2d 790, 794 (Mo. App. E.D. 1972).
A ground for termination of parental rights must include provisions of
parental misconduct, not just a passage of time. Respondent states that
the court may "construe" the Missouri statute as requiring parental
responsibility due to the time a child spends in foster care, and that
such a construction would be in line with a court's finding of
reasonable efforts by the Division of Family Services ("DFS"). See
Respondent's Br. at 49-50. This, however, fails to account for a
case-by-case analysis of parental conduct. Respondent's construction
would place all parents whose children had been placed in foster care on
equal footing with regard to fault. Additionally, Respondent's argument
ignores situations where DFS may have extended reasonable efforts, but
due to delays beyond the control (or fault) of the parents and/or DFS,
fifteen months have elapsed. See In re H.G., 757 N.E.2d 864, 872-73
(Ill. 2001). Besides, inferences of parental fault are not appropriate
when considering the constitutionality of the 15-out-of-22-month rule,
when all other grounds for termination of parental rights contained in
Section 211.447.2-4 provide some description of parental misconduct.
The only exception is Section 211.447.2(1).
C. The 15 22 Month Rule Is a Substantial Constitutional Question Which
Requires Transfer to the Missouri Supreme Court.
Estate of Potashnick, 841 S.W.2d 714 (Mo. App. E.D. 1992)
M.L.B. v. S.L.J., 519 U.S. 102 (1996)
A constitutional question is substantial when it "involves some fair
doubt and reasonable room for controversy." Estate of Potashnick, 841
S.W.2d 714, 718 (Mo. App. E.D. 1992). Respondent insists Father's
constitutional challenge is merely colorable, thus not appropriate for
Supreme Court review. Respondent's Br. at 55. But see Respondent's
Brief at 8 (stating the constitutional claim is not colorable). Rather
than being without merit or pretense, Father's challenge of the Missouri
15-out-of-22-month rule is real and substantial, not colorable. This
state's protection of children balanced against protection and promotion
of families makes legitimate challenges to the constitutionality of the
Missouri termination of parental right statute of utmost importance.
Certainly fair doubt and controversy do exist with regard to the
15-out-of-22-month rule. Illinois reviewed the 15-out-of-22-month
portion of their adoption statute and found it unconstitutional. See In
re H.G., 757 N.E.2d 864 (Ill. 2001). As noted in Respondent's Brief,
three states have reviewed their statutes regarding the
15-out-of-22-month rule. See Respondent's Brief at 51-54.
To further buttress their argument that Father's constitutional
challenge is merely colorable, Respondent argues that a rational basis
test rather than a strict scrutiny standard should apply when analyzing
the 15-out-of-22-month rule. See Respondent's Brief at 51. Respondent
argues (based upon Phelps) that the 15-out-of-22-month rule should be
viewed more as a procedural provision or "benchmark," which merely
requires the parent(s) to appear in court one more time to determine the
child's best interests, and that such a requirement is not an
infringement on the family. See Respondent's Brief at 51. See also
Phelps v. Sybinsky, 736 N.E.2d at 817-18. However, in this particular
case, Section 211.447.2(1) did not provide a "benchmark" or "guideline"
to the trial court, but instead provided the required ground without
which the trial court could not have considered evidence of child's best
interest and ultimate termination. As such, and because termination of
parental rights rulings substantially infringe fundamental parental
rights protected by the Fourteenth Amendment of the United States
Constitution, analysis of the 15-out-of-22-month rule requires strict
scrutiny. See M.L.B. v. S.L.J., 519 U.S. 102, 118 (1996).
For the reasons stated above, the constitutional challenge to Missouri's
15 out-of-22 month rule is substantial, legitimately contested, thus not
colorable.
II. CONCLUSION
For the reasons stated above, combined with those facts and arguments
contained in Appellant's Brief, the judgment of the juvenile court
should be reversed.
Respectfully submitted,
THE RAITH LAW FIRM, P.C.
By
Peter A. Raith MO Bar #46752
P.O. Box 412415
Kansas City, Missouri
(816) 221-9474
(816) 221-1610 (facsimile)
ATTORNEY FOR APPELLANT N.S.
III. CERTIFICATE OF COMPLIANCE WITH RULES
Pursuant to Rule 84.06(b) and Special Rule XXXII, I hereby certify that
this Brief meets the typed volume limitation and that it contains 2,377
words, according to the word counting feature of Microsoft Word software
used to create this Brief. In addition, this Brief complies with Rule
84.06 in that the text of the body of the Brief is in 13-point Times New
Roman type.
Pursuant to Special Rule 32, I further certify that the disk has been
scanned for viruses and that it is virus free.
By
Peter A. Raith MO Bar #46752
P.O. Box 412415
Kansas City, Missouri 64141
(816) 221-9474 (phone)
(816) 221-1610 (facsimile)
ATTORNEY FOR APPELLANT N.S.
CERTIFICATE OF SERVICE
I hereby certify that on this 24th day of July, 2003, two (2) true and
correct copies of the above and foregoing brief, and one (1) diskette
containing the same, were served by depositing the same in the United
States mail, first-class, postage prepaid and properly addressed as
follows:
Kathy Rodgers
625 E. 26th Street
Kansas City, MO 64108
Gary Lee Gardner
Assistant Attorney General
P.O. Box 899
Jefferson City, MO 65102-0000
ATTORNEY FOR APPELLANT
APPENDIX
Section 211.447.2 RSMo A1-4
Section 211.447.5 RSMo A1-4
Missouri Supreme Court Rule 119.07b A-5
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* Nehmo Sergheyev *
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http://home.kc.rr.com/missouri/Susan_Talks.htm
Dan Sullivan
You and your family have my prayers.
All the best, Dan Sullivan