C.K.G., In Interest of

• Court: Missouri Court of Appeals
• Writing for the Court: CROW; PREWITT, P.J., and PARRISH
• Citation: C.K.G., In Interest of, 827 S.W.2d 760 (Mo. App. 1992)
• Decision Date: 07 April 1992
• Docket Number: No. 17687,17687
• Parties: In the Interest of C.K.G., a child under seventeen years of age. M.F.H., Appellant, v. Perry W. EPPERLY, Chief Juvenile Officer of Greene County, Respondent.

Page 760

827 S.W.2d 760

In the Interest of C.K.G., a child under seventeen years of age M.F.H., Appellant, v. Perry W. EPPERLY, Chief Juvenile Officer of Greene County, Respondent.

No. 17687.

Missouri Court of Appeals,

Southern District,

Division One.

April 7, 1992.

Douglas W. Greene, III, Twibell, Upp & Greene, Springfield, for appellant.

Kay A. Van Pelt, F. Richard Van Pelt, Van Pelt and Van Pelt, P.C., Springfield, for respondent.

CROW, Judge.

On October 24, 1990, the Chief Juvenile Officer of Greene County filed a petition to terminate the parental rights of M.F.G. ¹ ("Mother") and her former husband, S.D.G. ("Father"), to their son, C.K.G. ("C"), born February 27, 1981. The trial court heard evidence on two dates, and on June 18, 1991, entered an order terminating the parental rights of both parents.

Mother, alone, appeals. The first of her two points relied on avers the trial court erred in four respects: (A) failing to properly consider "the statutory elements" of § 211.447, RSMo 1986; (B) failing to consider "the unrebutted evidence that [Mother] had complied with all of the requirements of § 211.447 and had successfully complied with all requirements of all court ordered treatment plans"; (C) failing to "consider, construe, and strictly adhere to the ... statutory elements contained in § 211.447 which are mandatory for the trial court to consider prior to ordering the termination of parental rights"; and (D) making findings of fact "against the weight of the evidence and unsupported by substantial evidence."

The authority to terminate parental rights is conferred by § 211.447, RSMo Cum.Supp.1990. Subsection 2 thereof reads:

The juvenile court may terminate the rights of a parent to a child upon a petition filed by the juvenile officer ... if it finds that the termination is in the best interests of the child and when it appears by clear, cogent and convincing evidence that one or more of the following grounds for termination exist:

....

(2) The child has been adjudicated to have been abused or neglected. In determining whether to terminate parental rights under this subdivision, the court shall consider and make findings on the following conditions or acts of the parent:

(a) A mental condition which is shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed and which renders the parent unable to knowingly provide the child the necessary care, custody and control;

(b) Chemical dependency which prevents the parent from consistently providing the necessary care, custody and control of the child and which cannot be treated so as to enable the parent to consistently provide such care, custody and control;

(c) A severe act or recurrent acts of physical, emotional or sexual abuse toward the child or any child in the family by the parent ... or by another under circumstances that indicate that the parent knew or should have known that such acts were being committed toward the child or any child in the family; or (d) Repeated or continuous failure by the parent, although physically or financially able, to provide the child with adequate food, clothing, shelter, or education as defined by law, or other care and control necessary for his physical, mental, or emotional health and development.

....

In its order terminating parental rights, the trial court found C had been adjudicated abused or neglected in a jurisdictional hearing December 14, 1988, in the Juvenile Division of the Circuit Court of Greene County in case JU188-325J. The trial court made the following findings as required by paragraphs (a) through (d) of subdivision (2) of subsection 2 of § 211.447 (quoted above):

a. ... There was no clear, convincing and cogent evidence presented that would substantiate a finding that said biological mother ... suffer[s] from any such mental condition. However, there was evidence presented that said biological mother is unable to place the best interest of her child above her own personal need. That said biological mother has a personality disorder in which she places the need of her boy friends above all else. That this is a long term problem and continues to pose a danger to said minor child.

b. ... There was evidence presented which would indicate that said biological mother suffers from an alcohol and substance abuse condition. That by mother's own admissions and supporting evidence mother has a long history of abusing alcohol and cocaine. That this condition is presently being treated but continues to be a source of vital concern to said biological mother and her counselor.

c. ... There was evidence presented which would establish said biological mother should have known [severe or recurrent] acts [of physical, emotional or sexual abuse] had been or were being committed toward said minor child. That by said biological mother's own testimony and other supporting evidence it was established said biological mother knew or should have known that such acts of emotional and sexual abuse were occurring toward said minor child. That these acts were perpetrated by Michael B____, Danny L____, Donny K____ and other paramours of said biological mother. That said acts consisted of, but were not limited to, sodomy and oral sex.

That said biological mother knew or should have known that acts of physical abuse were committed toward Michelle L____ [a daughter of Mother] by Michael B____ which resulted in the death of said child. That Michelle L____ was a sibling of [C] and a member of his family as required under section 211.447.2(2)c as amended to date. That said acts consisted of, but were not limited to, beating her about the head, chest and legs, and sodomy. That evidence establish this knowledge is the ... source of great guilt in said biological mother's life.

d. That said biological mother ... [has] repeatedly or continuously failed to provide the said minor child with adequate food, clothing, shelter, or education as defined by law or other care, custody, and control necessary for his physical, mental, or emotional health and development, although physically or financially able.

Before addressing Mother's first point, a synopsis of the evidence is helpful.

Mother was born September 4, 1962. She married Father in 1979. C was born February 27, 1981. The marriage was dissolved in 1982.

Mother thereafter commenced a relationship with one Ralph. She and C lived with Ralph some six months, after which Ralph departed.

Mother moved in with Danny L____ in June, 1983. Michelle L____, mentioned in finding "c" (quoted above), was born August 1, 1986. Danny L____ left Mother in January, 1987.

Michael B____ moved in with Mother in the summer of 1988. On October 16, 1988, an investigator for the Division of Family Services ("DFS") went to the residence of Mother and Michael B____ in response to a reported "abuse and neglect situation." Some four weeks earlier, police had received a complaint that Michelle had bruises on her face and "some vaginal redness." Questioned by the investigator, Mother disclosed no "domestic violence." The investigator found no evidence indicating C or Michelle was at risk.

On Thursday, October 20, 1988, Mother was called home from work by Michael B____. Mother saw Michelle had bruises across her forehead and on her chin, down her back and on her buttocks. Mother also noticed blood "from the front to the back of the child's bottom." Michael B____ informed Mother that Michelle had been constipated for a couple of days and had passed a large stool, accounting for the bleeding.

In the ensuing days, Michelle wanted to sleep a lot, had diarrhea, and was throwing up. She would not eat.

On Tuesday, October 25, 1988, Mother arrived home from work and found Michelle in worse condition. Michelle's lips appeared swollen and bruised. She was unresponsive. When Mother asked Michael B____ what had occurred, he became angry and departed. Mother, accompanied by C, took Michelle to a hospital.

Michelle arrived at the hospital about 11:00 p.m., in a comatose state. Examination indicated she was suffering from intracranial bleeding resulting from a blow to the head. A physician concluded Michelle had sustained head trauma and "rectal trauma" within hours before arriving at the hospital. A DFS investigator observed countless bruises on Michelle's head, body and limbs. Some appeared more recent than others.

Because of the severity of Michelle's injuries, a DFS official took protective custody of C at the hospital on the morning of October 26.

A DFS worker talked with Mother that date (October 26) and asked why she had waited five days (from October 20 until October 25) to take Michelle to the hospital. Mother replied she feared there would be a report "to the hotline," as there had been a report a few days earlier.

Michelle never recovered, and died in the hospital October 28, 1988. Michael B____ ultimately pled guilty to second degree murder in connection with Michelle's death and was sentenced to life imprisonment.

Soon after C was taken into protective custody, a petition was filed in his interest in the Juvenile Division of the Circuit Court of Greene County, evidently per § 211.031.1(1), RSMo 1986. We infer that proceeding was case JU188-325J, referred to in the trial court's findings in the instant case. ² A hearing on the issues of jurisdiction and disposition was held December 14, 1988, in JU188-325J. The court ordered C continued in the temporary legal custody of DFS. That order was obviously the one mentioned in the order terminating parental rights, noted earlier in this opinion. Additionally, the court in JU188-325J approved a treatment plan for Mother and ordered it implemented.

The services provided for C in JU188-325J included psychological evaluation and counseling. During those sessions, C gradually disclosed a long and appalling history of physical and sexual abuse at the hands of Mother's...