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Missouri Supreme Court Immigrant Custody Case - Full Opinion

Missouri Supreme Court Immigrant Custody Case - Full Opinion

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Published by: St. Louis Public Radio on Jan 25, 2011
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01/25/2011

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SUPREME COURT OF MISSOURI
en banc
 
In re the Adoption of C.M.B.R., )a minor. ))S.M. and M.M., ))Respondents, )v. ) No. SC91141)E.M.B.R., ))Appellant. )APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTYThe Honorable David C. Dally, Judge
Opinion issued January 25, 2011
E.M.B.R. (Mother) appeals a judgment terminating her parental rights to her son,C.M.B.R. (Child), and granting M.M. and S.M.’s petition to adopt Child because the trialcourt found she willfully abandoned him. The failure to investigate and file reports priorto the trial on the petition as mandated by sections 211.455, 453.070.1 and 453.077.1 isplain error and requires reversal of the judgment of termination of Mother’s parentalrights and the grant of adoption.
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The cause is remanded and, on remand, the court shallorder compliance with the reporting requirements of those statutes before retrial on the
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The following statutory citations are to RSMo Supp. 2010: Sections 211.447, 453.030,453.070, and 453.110. All other statutory citations are to RSMo 2000. All Missouri rulecitations are to Missouri Court Rules 2010.
 
claims in the petition as they pertain to Mother’s parental rights under section211.447.2(2)(b), whether her consent was required under section 453.040(7), and theadoption of Child by S.M. and M.M.
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I. Factual and Procedural Background
This Court views the evidence and permissible inferences drawn from theevidence in the light most favorable to the judgment.
Suffian v. Usher 
, 19 S.W.3d 130,136 (Mo. banc 2000); Rule 73.01(c). Viewing the evidence in the light most favorable tothe judgment, the evidence adduced at the trial was that Mother is a citizen of Guatemala.Mother entered the United States in 2006, when she was pregnant with Child. The fatherwas not involved with Mother at the time of Child’s birth. Mother never has revealed thename of Child’s biological father.During her pregnancy, she did not receive prenatal care. She did receiveeducational services from Laura Davenport, a parent educator for Parents As Teachers inCarthage.
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Child was born October 17, 2006. A few days later, Ms. Davenport provideda crib for Child because Mother and Child were sleeping on the floor of the apartment of two acquaintances. Mother was not working at the time, and her roommates provided herwith food. The living conditions in the home were poor.
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The parental rights of the putative father also were terminated under section211.447.2(2)(b), and the trial court found his consent to the adoption was not requiredunder section 453.040. Those provisions of the judgment were not the subject of Mother’s appeal and are affirmed.
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Ms. Davenport is fluent in Spanish.
 
Approximately two to three months later, Ms. Davenport visited Mother and Childagain. At this time, they were living with Mother’s brother, his wife, and their three sons.The conditions of the brother’s home also were poor. The brother and his family all livedin one bedroom. At this time, Ms. Davenport noticed that Child “seemeddevelopmentally delayed and a little weak.” He had slow muscle development and didnot have good head support. Because developmental delays can be the result of poornutrition, lack of attention, and lack of exercise, she instructed Mother about exercisesand “sitting up practice” for Child. At this time, Mother had not obtained a birthcertificate for Child, and Ms. Davenport instructed Mother that, without a birthcertificate, she could not receive social services including WIC for Child. Child wasbeing fed whole milk, not infant formula, which concerned Ms. Davenport becausebabies need the extra nutrition that formula provides to be able to develop normally. Atthe time, Mother was employed, and the family members traded child care.On May 22, 2007, the United States Department of Homeland Security –Immigration and Customs Enforcement conducted a raid on a poultry processing plant inBarry County, where Mother was working. She was arrested in the raid. At the time of the raid, Child was 7 months old, and Mother and Child were still living with Mother’sbrother and his family. As a result of Mother’s arrest, Child was left in the care andcustody of Mother’s brother. Her brother placed Child in the care and custody of Mother’s sister because he could not take care of Child. Mother’s sister and her husbandhave two children, who were then 3 and 1/2 years old and approximately 7 months old.They lived in a one-bedroom apartment, and both worked full-time.3

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