H.J.P., In Interest of

• Citation: 669 S.W.2d 264
• Decision Date: 04 April 1984
• Docket Number: No. 13065,13065
• Parties: In the Interest of H.J.P. and C.E.P., Minors. James D. HUTCHINSON, Juvenile Officer, Petitioner-Respondent, v. C.A.P., Natural Mother-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 264

669 S.W.2d 264

In the Interest of H.J.P. and C.E.P., Minors.

James D. HUTCHINSON, Juvenile Officer, Petitioner-Respondent, v. C.A.P., Natural Mother-Appellant.

No. 13065.

Missouri Court of Appeals,

Southern District,

Division One.

April 4, 1984.

Motion for Rehearing or to Transfer to

Supreme Court Denied April 20, 1984.

Loren R. Honecker, Sherwood, Honecker & Bender, Springfield, for petitioner-respondent.

Linda K. Thomas, Thomas & Brown, Springfield, for natural mother-appellant.

TITUS, Judge.

This is an appeal from an order terminating parental rights pursuant to Ch. 211, RSMo 1978. The proceedings below were initiated by a petition in which the juvenile officer of Greene County sought to terminate appellant's rights to her two children, a son C.E., age 7 at the time of the termination hearing, and a daughter, H.J., age 9 at that time. Following a hearing on the petition, the juvenile court entered its order terminating appellant's parental rights. Inasmuch as appellant now claims, inter alia, that there was not clear, cogent and convincing evidence to support certain of the juvenile court's determinations, we find

it necessary to undertake rather extensive recitation of the evidence presented at trial.

FACTS

Called first to testify on behalf of respondent juvenile officer was Maria Mendez, a psychiatrist requested by the Division of Family Services ("DFS") to do a mental evaluation of appellant. Dr. Mendez saw appellant several times from late April, 1980, until sometime in November of that year. In addition to making clinical observations, she administered a number of tests to appellant in order to ascertain the origin and nature of her mental condition at the time. The resulting diagnosis was that appellant was afflicted with both mental retardation ¹ and psychotic decompensation, the latter a condition involving distortions in perception. Because Dr. Mendez's diagnosis included both of these analytically distinct infirmities she could not say with certainty whether appellant's overall condition could be treated or was irreversible, though she was able to characterize the mental retardation as, "in all probability, a permanent state." Dr. Mendez further related that, given appellant's condition of psychotic decompensation, exposure to stress could "very well" plunge her into a psychotic state but that such an eventuality might be avoided if stress were minimized, such as through the sort of environmental control available in a supervised sheltered workshop. However, Dr. Mendez cautioned that placement of appellant in such a milieu would not necessarily bring about improvement in her social adaptive skills.

Dr. Mendez also noted the existence of a "great dependency relationship" between appellant and her mother. The latter lived with appellant, saw to it that the household bills were paid, and, to some indeterminate extent, acted as mother to appellant's two children. Asked if appellant would be able to function and live alone without help or without her mother, Dr. Mendez stated, "at the time that I saw her, I would seriously doubt it."

Appellant was further described as not possessing much practical intelligence. She was oriented to the day of the week but not to the month or year; she could not read and could barely count, though she could identify some letters of the alphabet. She had "no sense of money," e.g., she could not figure change, and, according to Dr. Mendez, would be very handicapped in dealing with ordinary, everyday matters such as what her income and expenses were and how to establish expenditure priorities. Aside from her educational deficiencies, appellant was said to have "poor judgment," a circumstance Dr. Mendez felt would, to some extent, adversely affect her care of the children: "There would be times when she probably would do well by them, but there will be times, too, that she won't." Appellant was said to exhibit concern and affection for her children, her apparent marginal capacity as a custodial parent notwithstanding.

Dr. Mendez had but limited contact with the children, having visited with each for only about an hour and a half. She described H.J. as "rather retarded developmentally, although she struck me as a very bright kid with a lot of potential to learn and make use of new information." Despite appearing "very interested, very willing to learn," at age 7 she barely knew the alphabet. C.E. was said to be "lagging behind" the norm for a 4 1/2 year old but nevertheless seemed "really bright ... with a lot of potential like his sister." He was said to have suffered from "a lot of neurotic fears, night terrors and nightmares." Dr. Mendez was of the opinion that living with appellant "would have a retarding effect" on the intellectual development of the children. More generally and by way of conclusion as to whether appellant should be permitted further contact with her children short of full custody, Dr. Mendez stated, "I think it would be, at best, very disruptive to whatever they're trying to do with their [adoptive] parents and I think it (sic) would be more turmoil With respect specifically to Ch. 211 grounds for termination, Dr. Mendez testified that appellant's condition would interfere with her ability to provide care and protection to minor children and that her mental deficiency rendered her unable consistently to form an intent or act knowingly. The prognosis allowed for limited chance of improvement.

both ways, especially to [appellant]." She went on to suggest that contact between appellant and her children every three or four months "would be okay ... as long as [the children's] expectations are not blown out of proportion and the kids know what's going on.... [I]t might be turned into something very productive."

James Bright, also a psychiatrist, testified that from July 30, 1980, until June 23, 1981, he evaluated H.J. and C.E. to determine whether they were having any problems while in foster care. C.E., who was between four and five years old at the time, was said to have been experiencing frequent nightmares, though he appeared happy during the daytime. He also appeared to be a bit behind in physical development, as he exhibited some problems walking, running, and handling objects, such as a ball.

Dr. Bright described H.J. as "considerably unresponsive, very withdrawn, aloof, shy and at times ... despondent and sad." She had experienced a number of nightmares and was worried obsessively about her mother. This latter preoccupation consisted of her desire that her mother be cared for and her apprehension that her mother would be angry at her for "going away and not taking care of her." H.J. talked at length about how concerned she was for her mother's well-being and said she felt she was not doing enough to care for her. Dr. Bright stated that this concern for her mother's welfare was not normal for a girl H.J.'s age. He found it significant that H.J. appeared to regard it as "her duty" essentially to be "the mother of her mother." Though H.J. demonstrated "considerable intelligence," she seemed very pensive, very worried. That her movements and speech were slow indicated possible psycho-motor retardation. Dr. Bright detected no gross cognitive or perceptual impairments other than a "relative absence" of knowledge of rather simple things such as shopping centers, grocery stores, theaters--things about which most 7-8 year old children would be fairly knowledgeable.

Dr. Bright testified that the problems exhibited by the children seemed to improve the longer they were away from their mother, e.g., they became more aware of things with which children their ages are commonly familiar. He described their lives in appellant's custody as marked by cultural deprivation; "they have been essentially cloistered in a trailer and watching television."

Asked whether, if appellant's parental rights were terminated, it would be harmful for the children to have occasional contact with appellant Dr. Bright responded he did not "have any reason to think that it would be terribly detrimental to them to occasionally see their mother in some sort of situation. Exactly what that situation would be ... would depend on how the children are functioning."

Betty Weber, a clinical psychologist who evaluated appellant on August 24, 1981, stated that the intellectual, projective, and perceptual-visual-motor testing she did of appellant showed her to be in the range of mild mental retardation. Ms. Weber said this retardation "would interfere with her performing average functions" as well as her ability to form an intent or act knowingly in certain circumstances. She opined that this interference could possibly extend to appellant's performance of maternal duties. Ms. Weber stated that appellant's judgment and reasoning ability could be considered more or less permanently impaired but that improvement would be possible through "adequate habilitative programming," including close supervision and guidance. Such a regime, necessarily comprehensive, would have to be directed toward development of general independent Dr. Han Hulstra, a psychiatrist, evaluated appellant in 1966 for the Department of Public Health and Welfare. He testified that, based on the results of tests he administered to her at the time, he diagnosed appellant as then having a severe mental deficiency; her I.Q. score of 36 reflected a mental age of just over six years. At the time, he believed her to be so mentally deficient as to be unable to form an intent or act knowingly. The prognosis was that her condition was permanent and irreversible. Dr. Hulstra had not seen appellant since he evaluated her in 1966.

functioning ability encompassing vocational and "basic survival skills." ²

Charlotte Thomas, a special education teacher and caseworker for mentally retarded persons, conducted an educational evaluation of appellant on August 24, 1981. In reading and math skills appellant tested at...