C.M.H. v. C.N.B.
| Decision Date | 18 September 2013 |
| Docket Number | SD 32474.,Nos. SD 32472,s. SD 32472 |
| Citation | 408 S.W.3d 805 |
| Parties | In the Interest of C.M.H., and S.F.H., Minors, Greene County Juvenile Office, Petitioner–Respondent, v. C.N.B., Mother, Respondent–Appellant. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Arthur E. Olson, Springfield, MO, for Appellant.
William C. Prince, Springfield, MO, for Respondent.
C.N.B. (“Mother”) appeals the judgments terminating her parental rights in, to, and over her children, C.M.H. and S.F.H. (“the children”). Because the relevant facts and legal issues are nearly identical, we address both appeals in this consolidatedopinion.1Seesection 211.447. 2 In five points relied on, Mother contends the trial court erred in terminating her parental rights because there was: (1) insufficient evidence that Mother had neglected the children; (2) no evidence that Mother had abused the children; 3 (3) insufficient evidence that Mother failed to rectify the conditions “which led to the assumption of jurisdiction ... and there is little likelihood that those conditions can be remedied at an early date so that the [c]hildren could be returned to [Mother] in the near future” (“failure to rectify”); (4) insufficient evidence that termination of parental rights was in the best interests of the children when “termination would deprive the [c]hildren of future rights to support and inheritance” and end “the mother-child relationship with no foreseeable replacement for the [c]hildren”; and (5) a “violation of Mother's due process rights under the [Fourteenth] Amendment to the U.S. Constitution and Article 1 of the Missouri Constitution” in “not explor[ing]” “less drastic alternatives to termination[.]”
Under the rare circumstances present in this case,4 we find Mother's fourth point to have merit. The trial court abused its discretion in concluding—based on its factual findings and the evidence adduced at trial—that the termination solely of Mother's parental rights was in the best interests of the children. As a result, we reverse the judgments and remand the cases for further proceedings consistent with section 211.477 and this opinion.5
We will affirm a judgment terminating parental rights
unless the “record contains no substantial evidence to support the decision, the decision is against the weight of the evidence, or the trial court erroneously declares or applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). See also [ In the Interest of ] A.S.W., 137 S.W.3d [448,] 452 [ (Mo. banc 2004) ]. As a practical matter, this means the judgment will be reversed “only if we are left with the firm belief that the order was wrong.” In the Interest of T.G., 965 S.W.2d 326, 332 (Mo.App.W.D.1998). Of utmost concern in parental rights cases is the best interests of the children. In the Interest of J.K. and R.T.H., 38 S.W.3d 495, 499 (Mo.App.W.D.2001). Conflicting evidence will be reviewed in the light most favorable to the judgment of the trial court. A.S.W., 137 S.W.3d at 452.
However, because parental rights are a fundamental liberty interest, statutes that provide for the termination of parental rights are strictly construed in favor of the parent and preservation of the natural parent-child relationship. Id. at 454. “The termination of parental rights is the exercise of an awesome power, and should not be done lightly.” In the Interest of P.D., 144 S.W.3d 907, 910 (Mo.App.E.D.2004). The decision to terminate such rights, therefore, will be reviewed closely.
In re S.M.H., 160 S.W.3d 355, 362 (Mo. banc 2005). “The termination of parental rights has been characterized as tantamount to a ‘civil death penalty.’ ” In re K.A.W., 133 S.W.3d 1, 12 (Mo. banc 2004) (citations omitted).
Termination of parental rights under chapter 211 requires a two-step process.
First, the trial court must find that one statutory ground for termination of parental rights exists. Section 211.447.6. The trial court's finding must be supported by “clear, cogent and convincing evidence that grounds exist for termination pursuant to subsection 2, 4 or 5 of [section 211.447].” Id. Evidence is clear, cogent and convincing, if it “instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true.”
In re B.J.H., 356 S.W.3d 816, 823–24 (Mo.App.W.D.2012) (quoting K.A.W., 133 S.W.3d at 12). “Where the [trial c]ourt finds multiple statutory grounds for termination of parental rights, in order to affirm the judgment, we need only find that one of the statutory bases was proven and that the termination was in the best interest of the child.” In re K.A.W., 220 S.W.3d 310, 315–16 (Mo.App.S.D.2007).
If the first step is satisfied, the trial court must next consider B.J.H., 356 S.W.3d at 824. “In any termination of parental rights, the primary concern must be the best interests of the child.” In re A.B.M., 17 S.W.3d 912, 915 (Mo.App.S.D.2000). The trial court must find, by a preponderance of the evidence, that termination of a parent's rights is in the best interests of the child based on a subjective assessment of the totality of the circumstances. In re T.L.B., 376 S.W.3d 1, 13 (Mo.App.S.D.2011). “[O]n appeal, the standard of review is abuse of discretion.” In re Adoption of C.M.B.R., 332 S.W.3d 793, 816 (Mo. banc 2011); In re P.L.O., 131 S.W.3d 782, 789 (Mo. banc 2004). “Judicial discretion is abused when a court's ruling is clearly against the logic of the circumstances then before the court and so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” In re A.S., 38 S.W.3d 478, 486 (Mo.App.S.D.2001).
Viewed in the light most favorable to the judgments, the facts are as follows. C.M.H. was born in June 2007, and S.F.H. was born in January 2009.
An investigator for the Missouri Department of Social Services, Children's Division (“the Children's Division”), Lara Chism, contacted Mother on June 24, 2010, after receiving a report that Mother had not filled prescriptions ordered for S.F.H. to treat ear and upper respiratory infections. Chism observed that Mother “had a black eye[,]” and Mother said that the father of S.F.H. was in jail as a result of domestic violence between them. Mother admitted that S.F.H.'s medicine had been prescribed on June 14th, but she claimed she had not filled the prescriptions “because there had been issues with the children's Medicaid.” S.F.H. “was clean and moving around the house and didn't appear to be in any distress[,]” but because ten days had elapsed from the time she had been diagnosed—and Chism thought that S.F.H. had been without medication during that time—she recommended that Mother take S.F.H. back to the doctor. The appointment was made for the next day.
Chism spoke with Mother twice on June 30th. In the first conversation, she confirmed that Mother had taken S.F.H. to the doctor, but she also learned that Mother did not pick up prescriptions called into a Wal–Mart pharmacy on June 25th until four days later. Chism contacted Mother the second time after receiving a report that Mother “had given [S.F.H.] antibiotics that had been prescribed to [Mother's] mother.” Mother admitted that she had done this prior to June 23rd when she did not pick up the prescribed medicine the first time.
Chism asked Mother to take a drug test (to be paid for by the Children's Division) by 5:00 p.m. on June 30th because the father of C.M.H. and another family member had expressed concern that Mother was using drugs. Mother did not take the test, and she did not return several calls from Chism before Chism was finally able to speak with her on July 2nd. Despite having previously assured Chism that “she had someone that could get her there[,]” Mother said she did not have a ride to the testing center. By this time, Chism had spoken with Mother's probation officer, and Chism talked to Mother about entering an inpatient drug treatment program. Mother was unwilling to do so.
Mother then failed to take a drug test requested by Chism on July 6th. At a conference at the Juvenile office the next day, Mother said that she was not going to let the father of S.F.H. back into the house when he got out of jail “[b]ecause of the domestic violence and the drugs.” She also admitted “that she used drugs with [the father of S.F.H.] when the children were in the home [.]” Mother admitted using methamphetamine “on and off for four years[,]” but she claimed that her last use of the drug was while the father of S.F.H. “was still living in the home” and that they were both “under the influence at the time of the domestic violence incident[.]” Mother submitted to a drug test at the Juvenile Office, and she said that it “would be positive for marijuana.” Mother's drug test came back positive for both marijuana and methamphetamines, and “[t]he children were taken into protective custody by the Juvenile Officer.”
Chism concluded that the family needed services based upon Mother's “failure to provide medication to [S.F.H.] on two separate occasions,” “providing medication that was not prescribed[,]” drug use, and domestic violence. The Children's Division had also conducted assessments or made referrals related to one or both of the children on five other occasions between December 2007 and April 2010.
A family foster care case manager, Amanda Dunham, had responsibility for the children's cases from the time the children came under the trial court's jurisdiction. The goal for the cases was initially “[r]eunification with [M]other.” The issues to be addressed and resolved were Mother's “[s]ubstance abuse [and] some general parenting classes to address the medical issue that had brought [the children] into care.” Dunham...
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