Mo. Dep't of Soc. Servs. v. E.B. (In re A.G.B.)

• Decision Date: 10 October 2017
• Docket Number: WD 80534
• Citation: 530 S.W.3d 7
• Parties: IN RE: A.G.B., Juvenile Officer; Missouri Department of Social Services, Children's Division, Respondents. v. E.B. (Mother), Appellant.
• Court: Missouri Court of Appeals

530 S.W.3d 7

IN RE: A.G.B., Juvenile Officer;Missouri Department of Social Services, Children's Division, Respondents.

v.E.B. (Mother), Appellant.

WD 80534

Missouri Court of Appeals, Western District.

OPINION FILED: OCTOBER 10, 2017

Sara H. Harrison, Jefferson City, MO, Kristen Burks, Macon, MO, Counsel for Respondents.

Cody M. Wells, Macon, MO, Counsel for Appellant.

Before Division Two: Edward R. Ardini, Jr., Presiding Judge, Anthony Rex Gabbert, Judge, Karen King Mitchell, Judge

Anthony Rex Gabbert, Judge

Introduction

E.B. (Mother) appeals the circuit court's judgment terminating her parental rights to her biological child, A.G.B. Mother asserts three points on appeal. First, Mother contends that the circuit court erred in terminating her parental rights pursuant to Section 211.447.5(3)¹ because the State failed to present clear, cogent, and convincing evidence that the conditions at the time of removal of the child persisted. Second, Mother contends that termination of her parental rights pursuant to Section 211.447.5(2) was against the weight of the evidence because the evidence presented did not indicate that Mother's mental condition prevented her from adequately parenting her child. Third, Mother contends that the court abused its discretion in finding termination of her parental rights to be in the best interest of the child because the evidence regarding the statutory factors set forth in Section 211.447.7 indicate Mother is a fit and able parent. We reverse all portions of the circuit court's Judgment relating to termination of Mother's parental rights.²

Background Information

Procedural History

A.G.B. was born July 24, 2014. On January 13, 2015, the circuit court ordered A.G.B. placed into protective custody for the reason that, "The mother reports she has mental health issues and cannot care for the child at this time." The court found removal of the child to have been based on an emergency thereby relieving the Children's Division from making reasonable efforts to prevent removal of the child from the home. However, the court also found that the Children's Division had attempted to provide Intensive In-Home Service to prevent removal. On February 24, 2015, A.G.B. was adjudicated to have been abused or neglected and without proper care, custody, and support pursuant to Section 211.031 based on the following findings:

a) Mother reported mental health issues including diagnosis of PTSD and bi-polar.

b) Mother repeatedly reported to the Children's Division worker that she is tired and is struggling with caring for the child.

c) Mother reported that she is resentful of the child, struggles to provide care for the child, and gets so upset with the child that she has to leave the room.

d) After a safety plan³ was implemented on January 10, 2015, as a result of Mother displaying emotional turmoil wherein she was crying and screaming, went to bed with the music loud and ignored everyone in the house, it was determined that the plan was not working.

The court ordered Mother to comply with the terms of the Written Service Agreement entered into with the Children's Division and that the Children's Division pay for any services required by the agreement.

Mother entered into her first Written Service Agreement with the Children's Division on February 11, 2015. The agreement required Mother to "address her mental health needs," "provide safe housing," and "demonstrate family bonding." To fulfill these requirements, Mother was to schedule counseling appointments with a "Burrell⁴ therapist," meet with a psychiatrist at Burrell, and sign releases for the Children's Division to speak with Burrell. The Children's division was to contact Burrell for updates. Mother was to locate safe, stable housing, provide a copy of her lease agreement, and meet monthly with the Children's Division. At the time A.G.B. was removed from Mother's care, Mother resided with her boyfriend, Bryan, and Bryan's mother in Macon. Mother and Bryan were to attend parenting class, sign releases, attend visits with A.G.B., and "demonstrate skills from parenting class." Shortly after Mother entered into the Written Service Agreement, Mother and Bryan moved from Macon to Columbia to be closer to the required psychological and psychiatric services.

A review hearing was held May 11, 2015. The court's docket entry for May 11, 2015, indicates that Mother had moved to Columbia and was continuing to have supervised visits with A.G.B. All parties were to continue to follow the "case plan."

A review hearing was held on August 10, 2015. On that date the court entered an order finding that Mother was "still working on the requirements of the Written Service Agreement." The court ordered that the Written Service Agreement continued to be followed. The court granted Mother "unsupervised visits for up to four hours per visit out in the community as long as Guardian Ad Litem approves of the visits."

The court held a permanency hearing three months later on November 9, 2015. At that time A.G.B. had been in foster care for ten months. At that hearing the court found that Mother was having weekly unsupervised visits with A.G.B. The court found that "services" were available to Mother in the form of "Family Support Team meetings" and "individual therapy."⁵ The court found that Mother was continuing to work toward the goals of the Written Service Agreement. A docket entry on this date indicates that the previous goal of reunification changed from reunification to reunification with a concurrent plan for termination of parental rights and adoption. Mother was ordered to submit to a psychological evaluation. Mother's visitation was to "be arranged during the Family Support Team meetings."

The court held a permanency hearing on February 8, 2016. Pursuant to that hearing the court found that Mother was having weekly unsupervised visitation with the child and that Mother was continuing to work toward the goals of the Written Service Agreement. The permanency plan for the child was noted to be both reunification with Mother and adoption. Bryan was ordered to submit to a psychological evaluation. A review hearing was scheduled for April 25, 2016.

Following the April 25, 2016, hearing, the court made a docket entry noting that psychological evaluations had been received for Mother and Bryan,⁶ and that the Children's Division was "to provide good info on status of TPR petition @ review on 5/23/16."

Following the May 23, 2016, review hearing, the court entered a docket entry stating that the "status of TPR petition" would be reviewed at a June 13, 2016 hearing. A.G.B. had been in foster care for sixteen months. The court ordered that the Children's Division "provide parent aide for 6 hours per wk." Prior to the parent aide order, Mother was having unsupervised visitation with A.G.B. in Macon. The parent aide services replaced Mother's previous visitation schedule and Mother's visitation with A.G.B. was moved to Mother's home in Columbia to be supervised by the parent aide. The parent aide began supervising Mother's visitation in mid-June of 2016. Following a June case review the court made a docket entry stating, "TPR petition to be filed after DNA results known."

On August 29, 2016, the Children's Division petitioned the court to terminate Mother's parental rights. The Juvenile Officer was later joined as a party. On September 12, 2016, the court modified its May 23, 2016, docket entry that had previously stated that the Children's Division "provide parent aide for 6 hours per wk" to "[Children's Division] to ‘make available’ parent aide for 6 hours per week."

A permanency hearing was held on October 24, 2016. The court ordered that the Children's Division was "to continue to make available parent aide for 6 hours per week" granting Mother "6 hours of visitation per week with the parent aide in the home."

On January 4, 2017, the court held a hearing on the Children's Division's petition to terminate Mother's parental rights. At the termination of parental rights hearing, Children's Division Worker, Elizabeth Barr, testified that the Children's Division entered into a total of six Written Service Agreements with Mother, the first dated February 11, 2015. Barr testified that the Written Service Agreements represent goals that the Children's Division asks a parent to complete for a ninety-day period. She testified that Mother's Written Service Agreements set forth three goals. The first was to address Mother's mental health needs, the second was to provide safe housing, and the third was to demonstrate family bonding. When asked at trial if Mother addressed her mental health needs, Barr testified, "She did to a certain degree, yes." Barr agreed that Mother had obtained safe housing in Columbia and testified that Mother had met all four conditions set forth under the family bonding requirement. Barr testified that Mother attended parenting classes, attended the majority of visits with A.G.B., and demonstrated appropriate parenting skills "for the most part." Barr stated that Mother had attended medication management appointments regularly and that her lithium

levels were in therapeutic range. She testified that she had not witnessed Mother to have any manic episodes in the year leading up to trial.

Barr testified that Mother was provided visitation with A.G.B. beginning almost immediately after A.G.B.'s removal in January of 2015. Barr testified that, when the visits started in January of 2015, they were supervised for approximately two hours per visit, and this occurred for approximately three months. After three months, the visits "went to loosely supervised where they were at the Children's Division Office and Children's Division was in the room most of the time, but then also could step out for a few minutes if we thought that that situation was safe at the moment." Each of these "loosely supervised" visits lasted for approximately four hours. This visitation occurred for approximately three to...