In re A.A.T.N.

• Decision Date: 31 January 2006
• Docket Number: No. ED 85697.,ED 85697.
• Citation: 181 S.W.3d 161
• Parties: In the Interest of A.A.T.N.
• Court: Missouri Supreme Court

181 S.W.3d 161

In the Interest of A.A.T.N.

No. ED 85697.

Missouri Court of Appeals, Eastern District, Division One.

November 1, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied December 7, 2005.

Application for Transfer Denied January 31, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Mary D. Fox, University City, MO, for appellant.

Kathryn L. Pierce, St. Louis, for Guardian Ad Litem.

Karen A. Siegel, St. Louis, MO, for respondent.

PATRICIA L. COHEN, Judge.

Introduction

Ahn Nguyen ("Father") appeals from a judgment of the Circuit Court of the City of St. Louis terminating his parental rights to his daughter, A.A.T.N.¹ Father contends that the trial court erred in terminating his parental rights because: (1) the record is insufficient to support the trial court's findings under Section 211.447.4(2),(3), and (6) RSMo.2000;² and (2) the trial court failed to address all relevant statutory factors set forth in 211.447.4(2) and (3); and (3) the trial court failed to address the "best interest" factors set forth in Section 211.447.6. We affirm.

Statement of the Facts and Proceedings Below

Viewed in the light most favorable to the trial court's decision, the facts are as follows. Four-year-old A.A.T.N. and her six-year-old sister, Annabelle, lived with Father and My Nguyen ("Mother").³ On April 17, 2003, Dr. Griffiths-Williams examined A.A.T.N. and Annabelle at St. Louis Children's Hospital. During the examination, Dr. Griffiths-Williams found multiple lesions on Annabelle's legs, arms, back, the back of her neck and left knee as well as bruising on her left foot. She found similar lesions on A.A.T.N. In total, Dr. Griffiths-Williams found approximately thirty lesions on Annabelle and fourteen lesions on A.A.T.N. The lesions appeared to be inflicted at different times, the most recent within thirty days of the hospital visit, and were not self-inflicted or accidental.

Suspecting abuse, the Missouri Department of Social Services, Children's Division ("Children's Division") took A.A.T.N. and Annabelle into care on April 18, 2003. The trial court held a jurisdictional hearing, and thereafter issued an order ("Jurisdictional Order"), determining that Father abused A.A.T.N and her sister and continuing the Children's Division's custody of the children. More specifically, the trial court determined that Father held a lighter to Annabelle's left knee, punctured her legs, arms and the back of the neck with a fork and hit her. The trial court also found that Mother knew or should have known of Father's abuse, but that Mother failed to protect both A.A.T.N. and Annabelle from Father. The trial court concluded that Father and Mother were not appropriate custodians for A.A.T.N. and Annabelle because, while in Father's and Mother's custody, the children were at risk of harm or neglect. Additionally, the trial court ordered Father to obtain employment and appropriate housing, initiate semi-monthly visitation with A.A.T.N., engage in parenting skills training and family violence counseling and pay child support.

On November 13, 2003, the trial court held a hearing to review Father's progress under the terms of the Jurisdictional Order. Following the hearing, the trial court determined that Father had partially complied with the Jurisdictional Order.

On April 14, 2004, the trial court held a permanency hearing. The children's therapist, Lanie Holzman, and their caseworker, Angela Hager, testified and recommended termination of Father's and Mother's parental rights. Kenneth Woods, a licensed clinical social worker and Father's therapist, also testified. Mr. Woods noted that although Father "must accept responsibility for what he did," Father continued to deny causing the children's injuries and offered no other explanation for their injuries. When discussing Father's denial of accountability, Mr. Woods admitted that Father's attitude was a "concern." The trial court also again reviewed Father's compliance with the Jurisdictional Order and concluded that Father failed to eliminate the conditions that caused the children's removal from the home. At the conclusion of the hearing, the trial court issued an order recommending the termination of Father's and Mother's parental rights.

The Juvenile Officer filed a Petition to Terminate Parental Rights against Father and Mother, and the trial court held a dispositional hearing on October 18 and 20, 2004. The Juvenile Officer presented the testimony of Ms. Holzman and Ms. Hager, both of whom testified that termination was in the best interests of the children.

Ms. Holzman, the children's therapist, based her recommendation on several factors. As an initial matter, Ms. Holzman, found A.A.T.N.'s account of the abuse credible. Moreover, Ms. Holzman believed Father would hurt A.A.T.N. if she returned home and Mother would be unable to protect A.A.T.N. from him. Furthermore, she explained that Father would not be able to participate in therapy with A.A.T.N. because he did not acknowledge his abuse. In addition, she testified that A.A.T.N. did not want to live with Father and that A.A.T.N. continued to fear him. She warned that the "threat of potential unsafety" would traumatize A.A.T.N. if she returned home. Finally, she predicted that the conditions which caused A.A.T.N.'s removal from the home would not change in the future.

Ms. Hager, the children's caseworker, echoed the testimony of Ms. Holzman. Ms. Hager concluded that, if the children returned home, Father would have access to the children and Mother would be unable to protect them. She noted that Mother desired to be with Father and spent nights with him at his residence. Ms. Hager repeated Annabelle's account of Father's abuse, including that Father held her down and burned her with a lighter on her knee and, on a separate occasion, burned her with a fork. Likewise, Ms. Hager disclosed A.A.T.N.'s report that Father hit and kicked her and stabbed her with a fork. Ms. Hager also described A.A.T.N. as "distant" during her visits with Father. Finally, Ms. Hager stated that A.A.T.N. did not want to live with Father because she feared he would hurt her.

The Juvenile Officer also presented the testimony of Jennifer Evans, a Family Court staff psychologist. Ms. Evans testified about her interactions with Mother and stated that A.A.T.N. risked developing "emotional problems" if she was returned to Father and Mother because there was a "potentially abusive" situation in the home.

In addition to live witness testimony, the Juvenile Officer proffered the Children's Division case file, Ms. Holzman's summary therapy reports and the Children's Division's Termination of Parental Rights referral forms for A.A.T.N. Ms. Holzman's summary therapy reports recounted A.A.T.N.'s and Annabelle's statements regarding Father's abuse. Likewise, the Termination of Parental Rights referral form detailed Father's abuse of A.A.T.N. and Annabelle. In addition to the reports and forms, the trial court took judicial notice of the pleadings and the files in A.A.T.N. and Annabelle's underlying cases. The files from the underlying cases contained, inter alia, the orders from the jurisdictional and permanency hearings.

In support of his position, at trial Father stated that he never abused his daughters and had complied with the trial court's order. In addition, he called Mary Conner, an employee of the Division of Child Support Enforcement, to explain why he failed to support A.A.T.N. Conner testified that the Division of Child Support Enforcement could not issue a child support order until paternity was established, and although Father submitted to a paternity test, the State never presented A.A.T.N. for the test. Nevertheless, she also stated that Father could have obtained a child support order without a paternity test by presenting an order of the trial court finding him to be A.A.T.N.'s father. The trial court also heard the testimony of Mother who claimed that Father could not have abused the children and the marks on the girls were from allergies.

Following the hearing, the trial court entered judgment terminating Father's and Mother's parental rights. Father appeals.

Standard of Review

Our review of a trial court's decision to terminate parental rights is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). We affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or the trial court erroneously declared or applied the law. In the Interest of B.L.H., 158 S.W.3d 269, 277 (Mo.App. E.D.2005). We view the facts in the light most favorable to the trial court's decision and defer to the trial court's superior ability to determine the credibility of witnesses. In the Interest of E.D.H., 138 S.W.3d 761, 764 (Mo.App. E.D.2004).

Section 211.447 sets out statutory grounds for the termination of parental rights and permits termination only when it is in the best interest of the child and the statutory grounds for termination are supported by "clear, cogent and convincing evidence." See In the Interest of S.M.H., 160 S.W.3d 355, 362 (Mo. banc 2005). Evidence which is clear, cogent, and convincing instantly tilts the scales in favor of termination when weighed against the evidence in opposition and leaves the fact finder with an abiding conviction that the evidence is true. Id. Such evidence may be found despite the presence of contrary evidence. In the Interest of D.C., A.C., 49 S.W.3d 694, 698 (Mo.App. E.D.2001).

After finding the existence of one or more of the statutory grounds, the trial court must consider whether termination is in the best interest of the child. In the Interest of P.L.O. and S.K.O., 131 S.W.3d 782, 789 (Mo. banc 2004). The determination of what is in a child's best interests is a subjective assessment based on the totality of the circumstances. B.L.H. 158 S.W.3d at 282. We review a best interest determination for...