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IN RE THE MATTER OF: )

K.A.F., a minor child, )

)

D.L.C. and B.E.C., )

)

Petitioners-Respondents, )

)

vs. ) No. SD36044

) 

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).

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 Father 

 1 T.A.F. is the natural mother of Child and is not a party to this appeal. 
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challenges the adoption solely 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. 

Father complains that his counsel failed to adequately communicate with him 

prior to the trial, 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 counsel 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 Interest 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. Father notes that in J.C., Jr., the 

appellate court rejected the more rigorous Strickland test which requires 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 guaranties 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 review includes a finding that the 

error committed by the trial court against the appellant “materially affect[ed] the merits 
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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 appellant can show that 

any error was outcome determinative. The Western District of this Court reaffirmed the 

standard that parents do not receive due process if the attorney was “effectively absent” 

during the proceedings. A.R.B. at *11. If the appellant does not receive any meaningful 

representation then, by definition, 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 

appellant 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 only 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 

pre-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 appeals

reversed the terminations of parental rights, involved trial counsel who remained entirely 

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 contract 
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prior to the hearing. Father rejected the agreement and a full trial ensued. As noted by 

Father, 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 meaningful 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. Father’s point is denied. 

The judgment is affirmed.

Nancy Steffen Rahmeyer, J. – Opinion Author

Gary W. Lynch, P.J. – Concurs

William W. Francis, Jr., J. – Concurs