1 IN RE THE MATTER OF: ) K.A.F. , a minor child , ) ) D.L.C. and B.E.C. , ) ) Petitioner s - Respondent s , ) ) vs. ) No

. SD 36 044 ) T.A.F. , ) Filed: November 26, 2019 ) Respondent , ) ) and W.J.M., ) ) Respondent

- Appellant. )
APPEAL FROM THE CIRCUIT COURT OF STODDARD COUNTY Honorable Stephen R. Mitchell, Senior Judge
AFFIRMED The guardians of K

. A

. F

. (“Child”) , D

. L

. C

. and B

. E

. C

. (collectively, “Guardians ”), filed a petition for adoption of Child, which was approved by judgment of the trial court and effectively terminated the parental rights of W.J.M. (“Father)

. 1 Father

1 T.A.F. is the natural mother of Child and is not a party to this appeal.2 challenges the adoption sol ely on the basis that his court

- appointed trial counsel was ineffective. We do not, therefore , address the substantive merits, but only address the complaint that counsel was ineffective.
Fat her complains that his counsel failed to adequately communicate with him prior to the t rial , failed to seek discovery on Father’s behalf, failed to call witnesses on Father’s behalf, failed to cross

- examine Guardians on Father’s behalf, failed to object to Guardians’ exhibits which allowed irrelevant information into evidence , and failed to seek a continuance to allow time to adequately prepare. Father contends that his due process right to effective counse l became meaningless because his attorney was not effective in providing a meaningful hearing. In the Interest of J .C. , Jr. , 781 S

. W

. 2d 226,
228

- 29 (Mo

. App. W.D. 1989). Father contends that J . C
. , Jr. and In the I nterest of
J

. M . B . , 939 S.W.2d 53 (Mo.App. E.D. 1997), two termination of parental rights cases in which the appellate court found ineffective assistance of counsel, compel a similar finding in this appeal. Father contrasts his appeal with several cases which affirmed the denial of ineffective assistance of counsel claims . Fa ther notes that in J . C
. , Jr. , the appellate court rejected the more rigorous Strickland test which req u ires both deficiency in counsel’ s performance and actual prejudice. J.C., Jr. at 228. The court held that the appropriate test was “ ‘[ I ] f it appears from the record that an attorney was not effective in providing a meaningful hearing, due process guaran ties have not been met. ’ ” Id. (quoting In re Moseley , 660 P.2d 315, 318 (1983)). Guardians argue that Father cannot win on the merits as the outcome would not have changed. Guardians claim the proper standard of revi ew includes a finding that the

error committed by the trial court against the appellant “materially affect [ed] the merits3 of the action.” In the Interest of A
. R . B . , No. WD82162, 2019 WL 4145028 , *10 ( Mo .App. W.D. Sep. 3 , 2019)

. We must reject Guardians’ argument that we do not consider the claim of ineffective assistance of counsel unless an a ppella nt can show that
any error was outcome determinative . The Western D istrict of thi s C ourt reaffirmed the standard that parent s do not receive due process if t he attorney was “effectively absent” during the proceeding s. A.R.B. at *11. If the appellant do es not receiv e any meaningful representation then , by d efinition, the appellant’ s side of the story was not submitted to the trial court

-- the attorney simply did not present the evidence and arguments of the

a

ppellant at trial. We , thus , proceed to the issue of whether Father received meaningful representation. We analyze the conduct of trial counsel in the context of the case. Father’s trial counsel not on ly presented evidence on behalf of Father, but he filed multiple Writs of Habeas Corpus ad Testificandum to even get Father to the courthouse to be able to testify and present evidence. Additionally, Father’s trial counsel actively participated in the
pr e - trial negotiations for the post adoption contact agreement; and his trial counsel actively participated in the trial, objecting to a particular line of questioning of Father. Father testified at the trial. He was able to state his desire to be part of Child’s life and his reasons why he contested the termination of his parental rights and adoption by Guardians

. By comparison, the earlier cases J.C., Jr. and J.M.B. , where the court of appeal s reversed the terminations of parental rights , involved trial counsel who remained en tirely passive throughout the pre

- trial and trial proceedings. Here, trial counsel attempted to negotiate the best result that he could for his client by negotiating a visitation contract4 prior to the hearing. Fathe r rejected the agreement and a full trial ensued. As noted by Fath er, he was not able to care for Child , he appreciated the care she received and that she was with her siblings. He explained why he had not participated in Child’s life. Father received m eaningful representation given the difficulty of the situation he found himself in. He simply presented a case of someone who has not participated and cannot participate for any time in the foreseeable future in Child’s life. Trial counsel presented the best evidence that he could at trial. Fath er’ s point is denied. The judg ment is affirmed.

Nancy Steffen Rahmeyer, J.

– Opinion Author Gary W. Lynch, P.J.

– Concurs William W. Francis, Jr., J.

– Concurs