In re D. L.P.

• Decision Date: 07 December 2021
• Docket Number: No. ED 109493,ED 109493
• Citation: 638 S.W.3d 82
• Parties: In the INTEREST OF: D.L.P., T.H., W.C.H., A.G.H., and R.S.M.H.
• Court: Missouri Court of Appeals

638 S.W.3d 82

In the INTEREST OF: D.L.P., T.H., W.C.H., A.G.H., and R.S.M.H.

No. ED 109493

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: December 7, 2021

FOR APPELLANT: Julie K.H. McCarver, McCarver Law Firm, L.L.C., PO Box 790, Farmington, MO 63640.

FOR RESPONDENT: Tammy M. Steward, 113 North Missouri Street, Suite B, Potosi, MO 63664.

GUARDIAN AD LITEM: Holly Joyce, PO Box 405, Park Hills, MO 63602.

Philip M. Hess, Presiding Judge

Introduction

Biological Mother ("Appellant") appeals the judgment of the 24th Judicial Circuit Court ("trial court") terminating her parental rights following a hearing.

Appellant raises four points on appeal. In Point I, Appellant argues the trial court erred and abused its discretion in denying her motion to reopen the evidence following the trial court's judgment. In Point II, Appellant argues the trial court's finding grounds existed to terminate her parental rights was against the weight of the evidence. In Point III, Appellant argues the trial court erred in terminating her parental rights because the evidence presented against her only proved she is poor. In Point IV, Appellant argues the trial court misapplied the law by failing to state the clear, cogent, and convincing evidence standard in its judgment terminating her parental rights.

Points II and IV are granted. We remand to the trial court for proceedings consistent with our opinion. Because Points II and IV are dispositive, we decline to address Points I and III.

Factual and Procedural Background

Appellant is the mother of five children, four of whom are the subject of this appeal.

Appellant's children were taken into Washington County Children's Division custody on November 20, 2018, following an October 12, 2018 report indicating Appellant and her children were living in a shed without central heat, refrigeration, or running water. Some children did not have beds and shared a blanket. Twenty-five dogs lived in the shed. There was very little food.

An investigation conducted by the Children's Division alleged the children were subjected to an unstable and unsafe living environment in Appellant's care. The investigation included the allegation Appellant's children had been periodically held out of school by Appellant and on other occasions attended school filthy and caked in mud, having gone weeks to months without bathing. The children did not own toothbrushes. The children were occasionally forced to find alternate housing with family and friends while the electricity in their home was out for several days at a time. The children were hungry and got in trouble for eating at home. The children occasionally asked neighbors for food.

Appellant consented to a social service plan in December 2018. The plan set forth several requirements, including participation in parent aid and substance abuse services; drug screening; counseling; and acquisition and maintenance of a stable home environment free of safety hazards, with working utilities and adequate space for Appellant and her children. The home was to be obtained within ninety days and maintained during the case. The plan also required Appellant obtain employment within sixty days and maintain the employment during the case. Appellant had to provide verification of the employment within twenty days of obtaining it. Appellant agreed to acknowledge her past abuse and to attend all school meetings and medical appointments about her children and meetings with the Children's Division. Appellant consistently paid court-ordered child support.

The Children's Division asserted Appellant has affection for her children and kept in contact with the Division but did not obtain suitable housing or employment following the removal of the children from her care.

At Appellant's termination of parental rights hearing on November 12, 2020, Julie Yearous ("Yearous"), a caseworker with the Children's Division, testified Appellant lived in multiple places during her involvement with the case. Yearous testified in 2019 Appellant lived in a group home without room for Appellant's children. Appellant's living space was compared to a dormitory bedroom. Caseworker Emily Brown ("Brown") testified on March 8, 2019, she conducted a home visit while Appellant was residing with her boyfriend, Biological Father, Biological Father's girlfriend, and other children in a three-bedroom home. The house was cramped and Brown believed the required setup of beds to accommodate the children presented a fire hazard. The Children's Division's report indicates Appellant also lived in a one-bedroom home with her boyfriend. Children's Division case manager Tonya Shearin ("Shearin") testified at the time of the hearing Appellant lived in a two-bedroom home with her boyfriend's family without room for "any children." The investigation indicated Appellant claimed she applied for a three-bedroom apartment but never rented it.

Yearous testified the Children's Division was denied entry to the most recent home. Appellant stated in her brief home visits were rebuffed in this residence due to the Covid-19 pandemic. Yearous testified she was "reluctantly" allowed in the home by Appellant's boyfriend in August 2020, and she observed the home was not appropriate for reunification of Appellant and her children.

Yearous testified Appellant obtained reliable transportation under her social service plan, but the vehicle still could not seat Appellant and all her children at one time.

The Children's Division's report indicated Appellant did not maintain and verify employment suitable to support the children throughout the case. She had been employed with a nursing home but was laid off and received only unemployment income. Brown testified she worked with Appellant from January through July 2019, and Appellant never verified she had employment. Shearin testified Appellant's boyfriend was injured at work and the couple was waiting on a large settlement to help obtain housing.

Both parties agree Appellant did not complete her counseling. Testimony by Children's Division employees clarified this was due to the failure of the Division to secure funding. Before this failure, Appellant regularly attended required counseling services.

Following the hearing, the 24th Judicial Circuit Court terminated Appellant's parental rights on November 23, 2020. The court found grounds for termination existed under sections 211.447.5(3) and 211.447.5(5) and termination was in the children's best interest.¹ This appeal follows. We will include additional factual and procedural history below as necessary to address the parties’ arguments.

Standard of Review

We will affirm the trial court's judgment terminating a party's parental rights unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. In re S.Y.B.G. , 443 S.W.3d 56, 59 (Mo. App. E.D. 2014) (citing In re C.J.G. , 75 S.W.3d 794, 797 (Mo. App. W.D. 2002) ). The judgment will be reversed only if we are left with a firm belief the judgment is wrong. Id. The evidence is viewed in the light most favorable to the trial court's judgment and we defer to the court's determination regarding credibility of witnesses. S.Y.B.G. , 443 S.W.3d 56, 59 (citing In re J.M.S. , 83 S.W.3d 76, 82 (Mo. App. W.D. 2002) ). The party seeking termination bears the burden of proof in a termination of parental rights proceeding. Id.

Discussion

A court's decision to terminate parental rights is an exercise of an awesome power we do not review lightly. Int. of T.M.L. , 615 S.W.3d 100, 103 (Mo. App. E.D. 2020) (citing In re J.R. , 347 S.W.3d 641, 645 (Mo. App. E.D. 2011) ). A parent's right to raise her children is a fundamental constitutional right. J.R. , 347 S.W.3d at 644 (citing In re C.F. , 340 S.W.3d 296, 298 (Mo. App. E.D. 2011) ). To terminate a person's parental rights, a court must conduct a two-step analysis. S.Y.B.G. , 443 S.W.3d at 59.

First, the trial court must find by "clear, cogent, and convincing evidence" one or more grounds for termination of parental rights exists. S.Y.B.G. , 443 S.W.3d at 59 (citing In re G.G.B. , 394 S.W.3d 457, 472 (Mo. App. E.D. 2013) ). "Clear, cogent, and convincing evidence" is evidence that instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the trier of fact is left with an abiding conviction that the evidence is true. S.Y.B.G. , 443 S.W.3d at 59 (citing In re E.F.B.D. , 245 S.W.3d 316, 319 (Mo. App. S.D. 2008) ). This standard may be satisfied even when evidence contrary to the trial court's finding is presented or the evidence might support a different conclusion. Id.

If the trial court finds at least one of the statutory grounds for termination exists, the court must then determine whether, by a preponderance of the evidence, the termination of parental rights is in the child's best interest. S.Y.B.G. , 443 S.W.3d at 59 (citing In re K.A.C. , 246 S.W.3d 537, 543 (Mo. App. S.D. 2008) ). The "best interest" determination is a subjective assessment based on the totality of the circumstances. S.Y.B.G. , 443 S.W.3d at 59 (citing G.G.B. , 394 S.W.3d at 472 ). We review the trial court's best interest determination for an abuse of discretion. S.Y.B.G. , 443 S.W.3d at 59 (citing In re P.L.O. , 131 S.W.3d 782, 789 (Mo. banc 2004) ). An abuse of discretion occurs only when the trial court's ruling is "clearly against the logic of the circumstances and so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration." S.Y.B.G. , 443 S.W.3d at 59 (quoting In re S.R.J., Jr. , 250 S.W.3d 402, 406 (Mo. App. E.D. 2008) ).

Section 211.447 provides the statutory grounds for judicial termination of parental rights. The trial court found grounds existed for the termination of Appellant's parental rights under section 211.447.5(3) and section 211.447.5(5). These are separate grounds for termination and w...