In re Interest of S.Y.B.G

• Decision Date: 23 September 2014
• Docket Number: No. ED 100739.,ED 100739.
• Citation: 443 S.W.3d 56
• Court: Missouri Court of Appeals
• Parties: In the interest of S.Y.B.G, Minor.

443 S.W.3d 56

In the interest of S.Y.B.G, Minor.

No. ED 100739.

Missouri Court of Appeals, Eastern District, Division Two.

Sept. 23, 2014.

Christopher M. Braeske, St. Louis, MO, for appellant.

Lance C. Bretsnyder, Clayton, MO, Janice M. Lauer, Guardian Ad Litem, St. Louis, MO, for respondent.

PHILIP M. HESS, Judge.

Introduction

L.G. (Mother) appeals the trial court's judgment terminating her parental rights to her daughter, S.Y.B.G. (Child). Mother claims there was insufficient evidence supporting the grounds for termination and the court's finding that termination was in the child's best interest. We affirm.

Factual Background

L.G. is the natural mother of S.Y.B.G., born on July 11, 2007. At the time, Mother was in a relationship with the biological father, who is now deceased.¹ In September 2011, police responded to a 911 call from Mother stating that she was in distress and hallucinating from using methamphetamine and marijuana. When officers arrived, they found Mother unable to function. Child was home alone with Mother at the time. On December 13, 2011, the Children's Services Division of St. Louis County (Division) filed a petition alleging that Mother had failed to provide care and custody for the minor child. The Division took protective custody of Child on December 23, 2011, and she was placed in foster care. On January 24, 2012, the child was adjudicated abused or neglected. On January 27, 2012, Mother entered into a written service plan agreement with the Division, whereby she agreed to obtain psychological and drug/alcohol evaluations, as well as attend and participate in counseling, recommended programs and classes, and submit to drug screens upon request. Mother was also required to attend weekly visits with Child and obtain suitable housing and employment. On February 1, 2013, the juvenile officer filed a petition to terminate Mother's parental rights pursuant to § 211.447.5(2)² (“abuse and neglect”) and § 211.447.5(3) (“failure to rectify”).

On June 28, 2013, the trial court conducted a hearing on the petition. On September 28, 2013, the court entered its judgment terminating Mother's parental rights, finding that the Child had been under the court's jurisdiction for a period of at least one year, that Mother suffers from a chemical dependency that prevents her from consistently providing the necessary care, custody and control over Child, and which is not likely to be remedied in the near future, and that the continuation of the parent-child relationship greatly diminishes Child's prospects for early integration into a stable and permanent home. The court further found that termination of Mother's parental rights was in Child's best interest. Mother appeals.

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 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 that 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. 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.

The termination of a party's parental rights requires a two-step analysis. First, the trial court must find by “clear, cogent, and convincing evidence” that one or more grounds for termination of parental rights exists. 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. 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 that 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. 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. In re G.G.B., 394 S.W.3d at 472. We review the trial court's best interest determination for an abuse of discretion. 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.” In re S.R. J., Jr., 250 S.W.3d 402, 406 (Mo.App.E.D.2008).

Discussion

Grounds for Termination of Parental Rights

In her first and second points, Mother challenges the sufficiency of evidence to support the grounds for termination pursuant to § 211.447.5(2) (“abuse and neglect”) and § 211.447.5(3) (“failure to rectify”).

As an initial matter, we note that under Point I of her brief, Mother misconstrues the basis for the termination of her parental rights, in that, she challenges the sufficiency of the evidence to support termination pursuant to § 211.447.5(2) (“abuse and neglect”). Although the court makes reference to both § 211.447.5(2) and § 211.447.5(3), as alleged in the petition, it is apparent that the court's findings (and subheadings) track the basis for termination set out in § 211.447.5(3), not § 211.447.5(2).³ Indeed, it is evident from the judgment that the court's findings were specifically tailored to address the factors in subsections (a) through (d) of § 211.447.5(3). As such, we address only Mother's challenge to the grounds for termination based on § 211.447.5(3), as set forth in Point II. Point I is denied.

Section 211.447.5(3)—Failure to Rectify

In her second point, Mother claims the trial court erred in terminating her parental rights under § 211.447.5(3) because there was insufficient evidence to support the court's findings.

For parental rights to be terminated based on § 211.447.5(3), the child must have been under the juvenile court's jurisdiction for a period of one year, and it must be determined that:

[T]he conditions which led to the assumption of jurisdiction still persist, or conditions of a potentially harmful nature continue to exist; and that there is little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the near future, or the continuation of the parent-child relationship greatly diminishes the child's prospects for early integration into a stable and permanent home.

Section 211.447.5(3).

In determining whether to terminate parental rights under § 211.447.5(3), the court must consider and make findings on the following four factors:

a) The terms of a social service plan entered into by the parent and the division and the extent to which the parties have made progress in complying with those terms;

b) The success or failure of the efforts of the juvenile officer, the division or other agency to aid the parent on a continuing basis in adjusting his circumstances or conduct to provide a proper home for the child;

c) 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;

d) Chemical dependency which prevents the parent from consistently providing the necessary care, custody and control over the child and which cannot be treated so as to enable the parent to consistently provide such care, custody and control[.]

The four factors are not separate grounds for termination by themselves, but rather categories of evidence, that the court may consider along with all other relevant evidence in determining whether grounds for termination exist under § 211.447.5(3). In re G.G.B., 394 S.W.3d at 468. Any one of the factors is a condition or act that may have a negative impact on a child, and if found to exist, should be considered in determining whether grounds for termination exist. Id. Although the court is required to consider and make findings as to all four factors, the proof of just one is sufficient for termination. In re N.M.J., 24 S.W.3d at 778.

“A parent's conduct after the filing of the termination petition cannot constitute the sole consideration of the trial court's decision.” In re T.E., 35 S.W.3d 497, 504 (Mo.App.E.D.2001). “The court must look to the totality of the parent's conduct, both prior to and after the filing of the petition[.]” In re J.W., 11 S.W.3d 699, 706 (Mo.App.W.D.1999) (quotations and citations omitted). “All grounds for termination must to some extent look to past conduct because the past provides vital clues to present and future conduct.” In Interest of T.T., 954 S.W.2d 429, 432 (Mo.App.W.D.1997). “Otherwise, a parent may argue that he has reformed since the filing of the petition; reformation having occurred while the child was away.” Id.

(a) Social Service Plan Compliance

With respect to the first factor, Mother's compliance with the terms of the social service plan, the court found that Mother had entered into a written service plan agreement on January 27, 2012. The service plan required Mother to obtain a mental health evaluation and parenting assessment, obtain a drug/alcohol evaluation, submit to drug screens as requested, attend scheduled visits with Child, write letters and/or cards to Child, obtain suitable housing and maintain employment, or otherwise provide sufficient income to support herself and Child. The...