IN THE INTEREST OF: )

J.X.B. and J.M.H., Minors, )

)

BUTLER COUNTY JUVENILE OFFICE, )

) No. SD36633 and SD36634

Respondent, ) Consolidated

) Filed: October 19, 2020

vs. )

)

J.E.B., Natural Father, )

)

Appellant. )

APPEAL FROM THE CIRCUIT COURT OF BUTLER COUNTY

Honorable Thomas D. Swindle, Judge

AFFIRMED, AND REMANDED WITH INSTRUCTIONS

In five points relied on, J.E.B. (“Father”) appeals the judgments of the Juvenile Division 

of the Circuit Court of Butler County (the “trial court”), which terminated his parental rights to his 

children J.X.B. and J.M.H. (the “Children”).1 Father fails to demonstrate reversible error in any 

of his five points, and we therefore deny the same and affirm the judgments of the trial court. We 

remand solely for the trial court’s resolution of the “Motion for Approval of Attorney’s Fees” filed 

by Father’s counsel.

 

1 The individual cases for each child were consolidated for this appeal. A petition was filed on behalf of each child 

and a separate judgment (collectively “judgments”) was entered with respect to each child.
2

Factual and Procedural Background

We recite the evidence and inferences in the light most favorable to the trial court’s 

judgment. See S.S.S. v. C.V.S., 529 S.W.3d 811, 815 (Mo. banc 2017). Additional material is 

included as necessary for context.

J.M.H. came into the custody of the Missouri Department of Social Services, Children’s 

Division) (“the Children’s Division”) in January 2017, when J.M.H.’s mother tested positive for 

methamphetamines. J.X.B. came into the custody of the Children’s Division in August 2017, as 

the result of a newborn crisis assessment, and due to J.X.B.’s mother having multiple involuntary 

terminations of her parental rights to other children in preceding years.2

Father entered Written Service Agreements (“WSAs”) regarding J.M.H. in June 2017, and 

J.X.B. in April 2018. As relevant here, the WSAs required Father to abstain from drug abuse or 

criminal activity; maintain employment/disability benefits; provide a safe home for the Children; 

not associate with people having criminal backgrounds; not allow anyone to reside in his home 

without approval from Children’s Division; participate in counseling and mental health services 

as required; take prescription drugs as prescribed, and under the supervision of Children’s 

Division; demonstrate understanding of the Children’s physical and emotional needs; keep 

Children’s Division representative apprised of his residence, contact information, and 

employment; sign all required releases; and be available for home visits from Children’s Division 

representatives. 

 

2

J.M.R. is the biological mother of J.M.H., and R.D.F.B. is the biological mother of J.X.B., in the termination of 

parental rights petitions filed in the trial court below, and their parental rights were also terminated as part of these 

proceedings. As neither J.M.R. nor R.D.F.B. is a party to this appeal, explicitly, we make no decision addressing the 

trial court’s termination of their parental rights to their respective children and refer to evidence about J.M.R. and 

R.D.F.B. only as is necessary to address Father’s appeal.
3

On July 2, 2019, petitionsto terminate parental rights were filed by the Children’s Division. 

The petitions asserted, in relevant part, that the Children had been abandoned for a period of six 

months, Father continued to neglect the Children; Father had a permanent mental condition such 

that there is no reasonable likelihood that the condition can be reversed and which renders him 

unable to knowingly provide the Children with the necessary care, custody and control; Father had

a history of chemical dependency; Father had failed to provide the Children with adequate food, 

clothing, shelter or education; that the Children had been in care for a period of time exceeding 

one year; Father had failed to substantially comply with his WSAs; and it would be in the best 

interest of the Children for Father’s parental rights to be terminated.

A hearing on the termination of Father’s parental rights was held on November 4, 2019.

3

 

Amber Tyler (“Tyler”), the caseworker for the Children at the time of the hearing, testified while 

Father did complete some assessments, he did not follow through with the requirements of the

WSAs. Father did not complete parenting classes, drug treatment, or counseling, and did not stay 

on his required medication. Father initially refused inpatient drug treatment on the basis that it 

reminded him of his time spent in prison, and his time spent in a juvenile facility as a teenager. 

Thereafter, Father did enter an inpatient drug program, but left after a few weeks, claiming he did 

not agree with the program’s policies.

Tyler testified that on October 23, 2018 and October 25, 2018, Father underwent a 

psychological evaluation with Dr. John Wood (“Dr. Wood”). Doctor Wood diagnosed Father with 

unspecified schizophrenia spectrum and other psychotic disorder, post-traumatic stress disorder,

mild stimulant use disorder (amphetamine-type substance), and mild cannabis use disorder. 

Doctor Wood recommended Father undergo counseling and therapy to improve Father’s behavior 

 

3 The trial court took judicial notice of the pleadings, orders, judgments and reports in the underlying abuse and neglect 

cases for the Children in juvenile Case Nos. 17BT-JU00013 and 17BT-JU00136.
4

and emotional skills with regard to care of the Children; abstain from alcohol and other moodaltering substances; and to complete a psychiatric evaluation for medication to assist and regulate 

Father’s emotions.

Tyler stated that as a result of Dr. Wood’s findings, a third WSA was provided for Father 

in November 2018. In addition to the goals previously outlined in his first two WSAs, Father 

agreed to complete family counseling with the Children; participate in individual therapy; undergo 

a psychiatric evaluation for medication placement; and avoid alcohol or other mood-altering 

substances. Father again did not follow through with any of these requirements. Although Father 

did schedule therapy sessions with Dr. Wood, he failed to attend the first three scheduled sessions, 

and Dr. Wood’s office accordingly canceled the remaining sessions. Father scheduled parenting 

classes through CASA, but missed the majority of those classes. He (again) scheduled parenting 

classes, this time at Recycling Grace, but that organization terminated Father’s participation due 

to his inappropriate behavior.4 After his psychiatric evaluation, Father was prescribed medication 

for his mental health issues, but failed to take that medication. Rather, Father admitted to Tyler 

that he was using methamphetamines, IV drugs, and “ice” to “cop[e],” and it was determined 

Father had a chemical dependency.

Tyler testified that Father was present for only one out of eleven Family Support Team 

meetings for J.M.H., and only one out of six Family Support Team meetings for J.X.B. Father 

also failed to keep her updated on his contact information. 

 

4 As a result of Father’s inappropriate behavior, Recycling Grace not only terminated Father’s participation, but also 

(according to the record) stopped offering parenting classes to men.
5

Tyler stated that Father had only seen J.M.H. for two bonding visits5since J.M.H. came 

into care. Father did not receive additional visits with J.M.H. because of his failure to provide 

clean drug screens. J.X.B. had no emotional ties to Father due his being taken into care at birth. 

Father was not allowed visits with J.X.B., again due to his failure to provide clean drug screens. 

In three years, Father had only one clean drug test.

Father received SSI benefits, but provided no financial or in-kind support to the Children, 

although required to do so by his WSAs.

Tyler stated she conducted a home visit a week prior to hearing. At that time, Father was 

living in a two-bedroom home, and his roommate did not have custody of her own children because 

of her own extensive history with Children’s Division. Tyler testified that this made the home 

inappropriate for the Children. During the time the Children were in care, Father struggled with 

homelessness. Tyler testified that during this visit, Father displayed negative emotions and 

behaviors toward her to such an extent that she feared for her safety, and requested that the 

Children’s Division not require her to visit Father again by herself.

Tyler recommended termination of Father’s parental rights to the Children, as both children 

needed “good, healthy forever homes,” and “experienced, focused parental care” to address the 

Children’s special needs.

The guardian ad litem for J.M.H. testified and opined it was in the best interest of J.M.H. 

that Father’s parental rights be terminated. The guardian ad litem for J.X.B. did not testify, but 

was to submit a report to the trial court.6

 

5 On August 23, 2018 and September 3, 2018, Father and J.M.H. attended a bonding assessment. Father did not take 

responsibility for his current situation with the Children, but instead blamed his girlfriend. Father stated the Children’s 

Division had pitted him against his girlfriend for several years. When asked if Children’s Division was to blame for 

his drug use and his girlfriend getting arrested, Father became upset and threatened to leave.

6 We cannot refer to the report of the guardian ad litem for J.X.B. as it was not filed with the record on appeal. 
6

On January 6, 2020, the trial court filed its judgments terminating Father’s parental rights 

to the Children on multiple statutory grounds. The trial court also found that termination of 

Father’s parental rights was in the best interest of the Children.

On February 5, 2020, Father filed a “Motion to Reconsider, Vacate, Alter, or Amend 

Judgment or, in the Alternative, Motion for New Trial,” which the trial court denied on March 2, 

2020. This appeal followed.

Father challenges the trial court’s judgment in five points on appeal. Father’s first four 

points argue, respectively, that the trial court’s judgments were against the weight of the evidence 

as to trial court findings that: (1) Father “abandoned both children”; (2) “pursuant to section 

211.447.5(2)(d),[7][Father] repeatedly and/or continuously failed to provide the Children with 

adequate food, clothing, shelter or education . . . or other care and control necessary for the 

Children’s physical, mental or emotional health and development”; (3) “[Father] has a mental

condition . . . rendering him unable to knowingly provide the child[ren] with the necessary care, 

custody and control, pursuant to section 211.447.5(2)(a)”; and (4) “[Father] has a chemical 

dependency which prevents him from consistently providing the necessary care, custody and 

control of the child [sic][.]” Father’s fifth point argues: “As the trial court erroneously found that 

grounds for termination did exist, it then made findings as to whether such a termination supported 

the children’s best interests.” For ease of analysis, we combine Father’s Points I through IV.

Standard of Review

This Court reviews whether there was clear, cogent, and convincing 

evidence to support a statutory ground for terminating parental rights . . . under the 

standard of review set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 

1976):

 

7 All references to statutes are to RSMo Cum.Supp. 2014, unless otherwise indicated.
7

The trial court will be sustained by the appellate court unless there 

is no substantial evidence to support it, unless it is against the weight 

of the evidence, unless it erroneously declares the law, or unless it 

erroneously applies the law. Appellate courts should exercise the 

power to set aside a decree or judgment on the ground that it is 

‘against the weight of the evidence’ with caution and with a firm 

belief that the decree or judgment is wrong.

On appeal, Father contends the circuit court’s conclusions . . . are against 

the weight of the evidence. Appellate courts act with caution in exercising the 

power to set aside a decree or judgment on the ground that it is against the weight 

of the evidence. A claim that the judgment is against the weight of the evidence 

presupposes that there is sufficient evidence to support the judgment. The againstthe-weight-of-the-evidence standard serves only as a check on a circuit court’s 

potential abuse of power in weighing the evidence, and an appellate court will 

reverse only in rare cases, when it has a firm belief that the decree or judgment is 

wrong. When reviewing the record in an against-the-weight-of-the-evidence

challenge, this Court defers to the circuit court’s findings of fact when the factual 

issues are contested and when the facts as found by the circuit court depend on 

credibility determinations. A circuit court’s judgment is against the weight of the 

evidence only if the circuit court could not have reasonably found, from the record 

at trial, the existence of a fact that is necessary to sustain the judgment. When the 

evidence poses two reasonable but different inferences, this Court is obligated to 

defer to the trial court’s assessment of the evidence. This Court rarely has reversed

a trial judgment as against the weight of the evidence[.]

S.S.S., 529 S.W.3d at 815–16 (internal quotations and citations omitted).

Analysis

Rule 84.04: Deficiencies Common to All of Father’s Points Relied On8

Rule 84.04(d) requires that each point relied on “be in substantially the following form: 

“‘The trial court erred in [identify the challenged ruling or action], because [state the legal reasons 

for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, 

support the claim of reversible error].’” None of Father’s five points relied on reflect even a token 

effort at compliance with this mandatory “erred in/because/in that” formula. “Given that a 

template is specifically provided for in Rule 84.04(d)(1), appellants simply have no excuse for 

 

8 All rule references are to Missouri Court Rules (2017).
8

failing to submit adequate points relied on.” Scott v. King, 510 S.W.3d 887, 892 (Mo.App. E.D. 

2017). This defect is fatal to Father’s appeal, as “[a] point relied on that fails to comply with Rule 

84.04(d) preserves nothing for appeal[,]”9and “[t]he Court will not consider it.” Piatt v. Indiana 

Lumbermen’s Mutual Insurance Company, 461 S.W.3d 788, 794 n.4 (Mo. banc 2015).

Argument Section

“All factual assertions in the argument shall have specific page references to the relevant 

portion of the record on appeal, i.e., legal file, transcript, or exhibits.” Rule 84.04(e). Father’s 

argument section seems to treat this Rule as a recommendation, rather than a mandatory 

prerequisite to relief on appeal. Pages of evidence-heavy argument blithely proceed without 

citation to the record. We count four pages (of twenty-one comprising Father’s argument section) 

containing any citation to the transcript—even there, the purpose seems to reflect emphasis, not 

compliance. Citations to exhibits are more frequent, but still insufficient to meet the requirement 

of Rule 84.04(e).

“We would have to do [Father]’s work to know if the record supports [his] arguments. We 

cannot sift [the record] for that purpose or to remedy [Father]’s violation without becoming a 

de facto advocate, which we cannot do.” Customer Eng’g Services v. Odom, 573 S.W.3d 88, 91 

(Mo.App. S.D. 2019) (internal quotations and citations omitted). Father’s “failure to tie his alleged 

claims of legal error to a specific factual matter from the record with specific citations[] renders 

his point[s] unreviewable.” Jones-El v. Lombardi, 506 S.W.3d 355, 356 (Mo.App. S.D. 2016).

 

9 Fifth Third Bank v. Estate of Shaw-Schneller, 586 S.W.3d 887, 888 (Mo.App. S.D. 2019).
9

Preservation Status

“For each claim of error, the argument shall also include a concise statement describing 

whether the error was preserved for appellate review; if so, how it was preserved[.]” Rule 84.04(e). 

In no instance does Father’s brief attempt at complying with this requirement. An appellate court’s 

role is not to “demonstrate [a claim] is properly preserved for appellate review[,]” and “an 

appellant’s failure to ascertain the preservation status of his or her claims . . . drastically undercuts 

the efficacy of appellant’s arguments[.]”10 Carruthers v. Serenity Mem’l Funeral & Cremation 

Serv., LLC, 576 S.W.3d 301, 305 (Mo.App. E.D. 2019) (internal quotation and citation omitted).

Father’s Points I- IV: Against-the-Weight-of-the-Evidence Challenges

Father’s Points I-IV all argue (in various respects) that the trial court’s judgments were 

against the weight of the evidence. 

Our Supreme Court explained the significant obstacles to a successful against-the-weightof-the-evidence challenge in Ivie v. Smith, 439 S.W.3d 189, 205-06 (Mo. banc 2014):

Appellate courts act with caution in exercising the power to set aside a decree or 

judgment on the ground that it is against the weight of the evidence. A claim that 

the judgment is against the weight of the evidence presupposes that there is 

sufficient evidence to support the judgment. In other words, ‘weight of the 

evidence’ denotes an appellate test of how much persuasive value evidence has, not 

just whether sufficient evidence exists that tends to prove a necessary fact. See

White v. Dir. of Revenue, 321 S.W.3d 298, 309 (Mo. banc 2010) (stating that 

‘weight’ denotes probative value, not the quantity of the evidence). The againstthe-weight-of-the-evidence standard serves only as a check on a circuit court’s 

potential abuse of power in weighing the evidence, and an appellate court will 

reverse only in rare cases, when it has a firm belief that the decree or judgment is 

wrong.

When reviewing the record in an against-the-weight-of-the-evidence challenge, this 

Court defers to the circuit court’s findings of fact when the factual issues are 

contested and when the facts as found by the circuit court depend on credibility 

determinations. A circuit court’s judgment is against the weight of the evidence 

 

10 Such failure “task[s] this court with assuming the role of advocate[,]” which we will not do. Marck Indus., Inc. v. 

Lowe, 587 S.W.3d 737, 745 (Mo.App. S.D. 2019).
10

only if the circuit court could not have reasonably found, from the record at trial, 

the existence of a fact that is necessary to sustain the judgment. When the evidence 

poses two reasonable but different conclusions, appellate courts must defer to the 

circuit court’s assessment of that evidence.

This Court defers on credibility determinations when reviewing an 

against-the-weight-of-the-evidence challenge because the circuit court is in a 

better position to weigh the contested and conflicting evidence in the context of 

the whole case. The circuit court is able to judge directly not only the demeanor of 

witnesses, but also their sincerity and character and other trial intangibles that the 

record may not completely reveal. Accordingly, this standard of review takes into 

consideration which party has the burden of proof and that the circuit court is free 

to believe all, some, or none of the evidence offered to prove a contested fact, and 

the appellate court will not re-find facts based on credibility determinations through 

its own perspective. This includes facts expressly found in the written judgment or 

necessarily deemed found in accordance with the result reached. Rule 73.01(c)[.] 

Evidence not based on a credibility determination, contrary to the circuit court’s 

judgment, can be considered in an appellate court’s review of an against-theweight-of-the-evidence challenge.

Ivie, 439 S.W.3d at 205–06 (internal quotations and citations omitted) (emphasis added).

These principles are reflected in the four-step analytical sequence set out in Houston v. 

Crider, 317 S.W.3d 178 (Mo. App. S.D. 2010):

(1) identify a challenged factual proposition, the existence of which is necessary 

to sustain the judgment;

(2) identify all of the favorable evidence in the record supporting the existence of 

that proposition;

(3) identify the evidence in the record contrary to the belief of that proposition, 

resolving all conflicts in testimony in accordance with the trial court’s credibility 

determinations, whether explicit or implicit; and,

(4) demonstrate why the favorable evidence, along with the reasonable inferences 

drawn from that evidence, is so lacking in probative value, when considered in the 

context of the totality of the evidence, that it fails to induce belief in that 

proposition.

Id. at 187.

Father’s Point I argument begins, in relevant part, by reciting (without citation) Houston’s 

analytical sequence, and then resolving that “[i]n support of this and subsequent points, . . . [f]or 
11

clarity, these [factors] will be so enumerated.” While Father’s brief makes some11 cosmetic 

approaches at such “enumerat[ion]” in Points I, III, and IV, his efforts land well short of 

substantive compliance with Houston’s requirements.

12

 Fatally, Father’s arguments attendant to 

Points I-IV fail to account for the trial court’s fact-findings and credibility determinations (explicit 

and implicit).13

In reviewing an against-the-weight-of-the-evidence challenge, we do not consider (and it 

is incumbent upon appellant not to rely on) evidence that was not credited by the trial court. 

Houston, 317 S.W.3d at 186–87; White, 321 S.W.3d at 307–08. Notably, in an against-theweight-of-the-evidence challenge, this Court considers certain evidence contrary to the judgment 

in the third and fourth steps of the analytical sequence, pursuant to Houston—i.e., where the 

appellant demonstrates: (1) the evidence was offered by a party with no burden of proof as to the 

ultimate issue for which that evidence was offered; (2) the efficacy of that evidence is not based 

on a credibility determination; and (3) the evidence is uncontested, uncontradicted, and not 

disputed in any manner. White, 321 S.W.3d at 307–08. Where these elements are satisfied, there 

is no credibility determination for the trial court to make—rather, the only task for the trial court 

 

11 Father’s Point II argument—purportedly an independently sufficient basis for reversal—makes the following 

attempt at satisfying Houston’s mandatory analytical sequence for an against-the-weight-of-the-evidence challenge: 

“Much of the evidence presented at trial, for or against such a failure to provide is the same as presented hereinabove 

in Point Relied on No. 1. All such information and argument is incorporated herein as if more fully set forth by this 

reference.” To be clear, “[t]he use of incorporation by reference is not sufficient in the argument section of a Brief.” 

Hill v. Ashcroft, 526 S.W.3d 299, 317 (Mo.App. W.D. 2017) (internal quotation and citation omitted) (emphasis 

added); Sugar Ridge Properties v. Merrell, 489 S.W.3d 860, 873 n.8 (Mo.App. S.D. 2016).

12 We make no effort at an exhaustive recitation of the analytical and rule-based deficiencies in Father’s brief. 

13 For example, nine pages of Father’s brief (and the argument attendant to two points relied on) reference purported 

“bonding” between Father and the Children. While Father’s brief presents us with evidence (as though credited) that 

Father has a strong bond with J.M.H., the trial court’s judgment specifically found that Father “has not bonded with 

[J.M.H.]” Even if this specific finding were absent—and not merely ignored by Father’s brief—Rule 73.01 directs: 

“All fact issues upon which no specific findings are made shall be considered as having been found in accordance 

with the result reached.”
12

(and this Court) is to determine the legal effect of such evidence. See id.; see also, Ivie, 439 

S.W.3d at 205–207.

In Father’s Points I-IV, against-the-weight-of-the-evidence challenges, his argument relies 

on evidence contrary to the trial court’s judgment. He does not attempt—or succeed—in 

demonstrating that such evidence was: (1) subject to the trial court’s fact-finding role, and was 

credited by the trial court; or (2) contrary evidence embraced by White’s prerequisites. Houston’s

analytical sequence is mandatory because it reflects the underlying criteria necessary for an 

appellant to succeed on appeal. Father’s failure to comply with Houston’s mandates renders his 

argument “analytically useless and provides no support for his challenge.” In Interest of N.L.W., 

534 S.W.3d 887, 899 (Mo.App. S.D. 2017) (internal quotation and citation omitted). This failure 

“dooms [Father’s] challenge[s].” Interest of R.J.M., 571 S.W.3d 219, 224 (Mo.App. S.D. 2019)

(internal quotation and citation omitted). Father’s Points I-IV are accordingly denied.

Father’s Point V: Trial Court’s Best Interest Finding

Father’s Point V in toto states:

As the trial court erroneously found that grounds for termination did exist, it then 

made findings as to whether such a termination supported the children’s best 

interests pursuant to RSMo §211.447.6. The trial court erred in finding by a 

preponderance of the evidence that termination supported the children’s best 

interest. Evidence showed the Appellant and J.M.H. demonstrated a very strong 

bond and that J.M.H. had no prospective adoptive home, though the caseworker 

had been looking. Appellant was never permitted to meet J.X.B., therefore the two 

do not share a bond, J.X.B. was in a pre-adoptive home with biological half-siblings 

who had been adopted by the placement providers. 

As discussed more fully, supra, this point reflects no attempt at compliance with Rule 

84.04(d). Moreover, Rule 84.04(d)(5) directs that “[i]mmediately following each ‘Point Relied 

On,’ the appellant, relator, or petitioner shall include a list of cases, not to exceed four, and the 

constitutional, statutory, and regulatory provisions or other authority upon which that party 
13

principally relies.” (Emphasis added). No cases follow Father’s Point V—Father does not 

“indicate that such cases were unavailable, or any other reason for the absence of such authority.” 

See Interest of R.J.M., 571 S.W.3d at 223-24. “Failure to cite relevant authority supporting the 

point or to explain the failure to do so preserves nothing for review.” Carruthers, 576 S.W.3d at

305 (internal quotations and citations omitted).

The substance of the argument attendant to this point is as follows:

It cannot be denied that Appellant shares no bond with J.X.B. as Appellant 

was never given the opportunity to create a bond with him. It appeared from the 

testimony that J.X.B. is currently placed in a stable, loving, familial environment 

where his goal of permanency through adoption can be achieved, however that does 

not necessarily mean that termination is in his best interests. Appellant is the 

biological father of J.X.B. and is also capable of providing J.X.B. with a stable, 

loving, familial home with his sister J.M.H. which would also support his best 

interests.

“Merely stating what errors are, without also stating why they are errors, neither complies with the 

rule nor preserves anything for review.” Interest of N.L.W., 534 S.W.3d at 898 (internal quotation 

and citation omitted). Father’s Point V argument suffers from an even more fundamental defect: 

it does not “stat[e] what the errors are.” See id.

14

 “This Court will not speculate on arguments not

made because to do so would cast the court in the role of an advocate for the appellant.” Harris 

v. Ralls County, 588 S.W.3d 579, 601 (Mo.App. E.D. 2019) (internal quotation and citation 

omitted). 

 

14 Marck, 587 S.W.3d at 746: 

[A]n argument must explain why, in the context of the case, the law supports the claim of reversible 

error. It should advise the appellate court how principles of law and the facts of the case interact. 

The applicable standard of review is the guidepost principle of law in considering and resolving 

every point relied on raised in an appeal. An argument, such as Appellants’ here, untethered to that 

guidepost is nothing more than a collection of abstract legal conclusions unmoored from any 

coherent legal basis or theory upon which an appellate court can find reversible error. If a party 

fails to provide more than mere conclusions to support an argument, the point is considered 

abandoned.

(internal quotations and citations omitted).
14

Father fails to demonstrate reversible error in his Point V, and we accordingly deny the 

same. 

“Motion for Approval of Attorney’s Fees” by Father’s Counsel

Father’s counsel filed her “Motion for Approval of Attorney’s Fees” with this Court on 

September 28, 2020, requesting approval of her legal fees in this appeal to “be taxed as costs 

against the Children’s Division” in the “amount of $14,225.00[,]” approximately four times the 

regulatory maximum. 13 C.S.R. 40-30.020(2)(B) (“For representation in an appellate court, the 

compensation shall not exceed three thousand five hundred dollars.”).15

This motion was taken with the case.16 While an appellate court is authorized to “consider 

the issue of attorney’s fees,”17“it is the more appropriate province of the trial court to determine 

whether and in what amount fees should be awarded to court-appointed counsel[.]” In re S.M.F., 

393 S.W.3d 635, 653 (Mo.App. W.D. 2013) (emphasis in original). “The trial court is better 

positioned to receive the arguments and evidence we currently lack, and is considered an expert 

 

15 See 13 C.S.R. 40-30.020(2)(A):

Attorneys may be reimbursed, at the conclusion of the representation (i.e., the conclusion of trial or 

at the conclusion of any appeal, or both at the conclusion of trial and at the conclusion of appeal), 

for expenses reasonably incurred . . . except that if a termination of parental rights petition was filed 

in a separate proceeding and a duplicative termination of parental rights petition . . . was filed[,] . . . 

reimbursement for attorneys fees and/or expenses will not be reimbursed if those fees and/or 

expenses are duplicative of fees and/or expenses reimbursed in the separate termination of parental 

rights proceeding[.]

See 13 C.S.R. 40-30.020(2)(D):

Payment in excess of any maximum amount provided in subsection (2)(B) may be made for 

extended or complex representation whenever the court in which the representation was rendered 

certifies that the amount of the excess payment is necessary to provide fair compensation and the 

payment is approved by the court. At any time an attorney believes that the cost of representation 

will surpass the limits provided for in subsection (2)(B), they must provide notice to the Division of 

Family Services, that they may exceed the current maximum fee[.]

16 Cf., Southern District Special Rule 14.

17 Interest of A.R.B., 586 S.W.3d 846, 867 (Mo.App. W.D. 2019).
15

on the question of attorney fees, even when the services were rendered for appellate work.” In the 

Interest of I.K.H., 566 S.W.3d 629, 633 (Mo.App. S.D. 2018).

We therefore remand for the trial court’s determination of this sole issue—having already

denied Father’s Points I-V, supra, we affirm the judgments of the trial court.18

WILLIAM W. FRANCIS, JR., J. - OPINION AUTHOR

NANCY STEFFEN RAHMEYER, P.J. - CONCURS

DANIEL E. SCOTT, J. - CONCURS AND FILES SEPARATE CONCURRING OPINION

 

18 We have ex gratia reviewed what we discern to be the primary thrusts of Father’s points, and observe that even 

without the defects in Father’s brief, Father would not have prevailed in the instant appeal.
IN THE INTEREST OF: ) 

J.X.B. and J.M.H., Minors, ) 

) 

BUTLER COUNTY JUVENILE OFFICE, ) 

) No. SD36633 and SD36634 

Respondent, ) Consolidated 

) 

vs. ) 

) 

J.E.B., Natural Father, ) 

) 

Appellant. ) 

CONCURRING OPINION

I agree that flagrant omission of rule-required record references, coupled 

with mere lip service to Houston v. Crider’s protocol, dooms Father’s Point IIV against-the-weight challenges. I write separately to note another reason these 

points fail. 

 For each child, the juvenile officer alleged and the court found three

statutory-termination grounds as to Father: § 211.447.5(1) abandonment, 

§ 211.447.5(2) neglect, and § 211.447.5(3) failure to rectify.

1

 Father’s briefs on 

appeal challenge only the first two statutory findings, but not failure to rectify, and 

indicate this was intentional and not by oversight. 

 

1 The court’s findings on each of these grounds, in separately-numbered paragraphs, are 

drawn directly from the statutory language in § 211.447.5(1), (2), and (3) respectively.
“When the trial court finds multiple statutory grounds for termination of 

parental rights, in order to affirm the judgment this Court need only find that one 

of the statutory bases was proven and that the termination was in the best interests 

of the child.” In re T.R.W., 317 S.W.3d 167, 170 (Mo.App. 2010). “Thus, if an 

appellant fails to challenge each of the termination grounds found by the trial 

court, it is unnecessary for the appellate court to address the specific ground that 

is challenged.” Id. Accord Interest of K.S., 561 S.W.3d 399, 406 (Mo.App. 

2018); Interest of J.J.D., 543 S.W.3d 133, 134 (Mo.App. 2018).

Father’s choice not to challenge the failure-to-rectify finding effectively 

moots his Points I-IV as to other termination grounds. I concur. 

DANIEL E. SCOTT, J. – CONCURRING OPINION AUTHOR