In re Interest of E.D.C., ED 104085

• Decision Date: 04 October 2016
• Docket Number: No. ED 104085,ED 104085
• Citation: 499 S.W.3d 766
• Parties: In the Interest of: E.D.C.
• Court: Missouri Court of Appeals

499 S.W.3d 766

In the Interest of: E.D.C.

No. ED 104085

Missouri Court of Appeals, Eastern District, DIVISION THREE.

FILED: October 4, 2016

John Richard Bird, St. Louis, MO, Attorney for Appellant.

Janice M. Lauer, Guardian Ad Litem, St. Louis, MO, Attorney for Juvenile.

Krista Peyton, St. Louis, MO, Attorney for Respondent.

ROBERT G. DOWD, JR.

, Judge

L.C. (“Mother”) appeals the judgment terminating her parental rights with respect to E.C. Because the trial court failed to make findings regarding the likelihood of future harm to this child, we must reverse and remand.

E.C. was born on January 12, 2007. He and his two older siblings were adopted by Mother that same year. Between 2007 and 2009, there were eight hotline calls regarding Mother's abuse of the older children, which included hitting them with objects in the eye and head. The Division provided seven months of intensive in-home services during that time period. On May 31, 2011, the trial court took jurisdiction over all of the children after finding that Mother had physically abused her daughter while the children were all members of the same household. The court found, and Mother admitted, that she had struck the girl with a belt “causing extensive bruising with multiple linear and loop marks upon the arms, leg and back.” Mother never physically abused E.C.

After the court took jurisdiction, Mother regularly visited E.C.; after a while, the court allowed unsupervised visits. Mother sometimes brought small items, such as gifts, snacks, lunch, clothes and supplies. She did not, however, provide any financial support at that time. Mother participated in services as ordered, which included a psychological and parenting assessment, anger management classes, individual therapy and parenting programs. The psychologist who conducted the assessment concluded that Mother “suffers from a significant learning disability and likely is mildly lowered functioning, although her adaptive (everyday) behavior skills appear to be adequate.” Mother admitted to the psychologist that she hit the children as a form of discipline. The psychologist observed that Mother “appeared oddly detached from the pain and fear that her children experienced.” Mother was found to have a “rigid and over-authoritarian” parenting style and a “very limited understanding of her children's needs and history” or ability to tailor her response to misbehavior to each child's individual needs.¹

In August of 2013, Mother pled guilty to child abuse that, according to the written plea and judgment, related to incidents of abuse occurring between January 2009 and May 2011, when the court took jurisdiction. Mother was sentenced to seven years in prison, and she began her incarceration in September of 2013. While incarcerated, she actively participated in her incarceration service plan. Mother was denied visitation, but maintained contact with E.C. through letters and called the case worker regularly to ask about him. She participated in parenting classes, self-improvement programs, anger management class and victim impact programs while in prison. Mother was employed in food services at one facility, but made no financial contributions to E.C.'s care other than one payment Mother claimed to have made in April 2014 of an unknown amount.

Ultimately, Mother consented to termination of her parental rights with respect to E.C.'s siblings, stating she felt it was in their best interest because they did not consider her their mother and never wanted to see her again. In July of 2015, the juvenile officer filed a petition to terminate Mother's rights to E.C., asserting as grounds for termination the adjudication of “abuse or neglect” that gave rise to the court's jurisdiction.² The trial was held in November of 2015. Mother was still incarcerated at the time.

The first Division case worker to testify at trial had been assigned to this case from August of 2014 until October of 2015. She testified that E.C., eight years old at the time of trial, had been diagnosed with and takes medicine for ADHD, which causes him to have trouble concentrating and wet the bed frequently. She testified that Mother was provided all the appropriate services and there were no additional services that could have been provided to bring about reunification with E.C. She did not know whether the child would be at any risk of harm if he were returned to Mother's custody, but she believed termination was in the child's best interest because he “seeks a permanent home wherever he can find it.”

Mother testified at trial that she loves E.C. and knows he loves her. She did not dispute any of the past abuse of his siblings. Though she accused a case worker of not providing the children all the items she brought for them and once suggested that is what led to her losing custody, she ultimately accepted responsibility for how the children came to be under the court's jurisdiction. Other than disputing whether any of the hotline calls were made in 2007, she agreed with everything the case worker said in her testimony.

A second case worker testified; she had only been on the case for three weeks in October of 2015. She also recommended termination, citing Mother's incarceration at the time of trial. She was aware that E.C.'s therapist had, shortly before the trial, recommended reunification if Mother's psychological and parenting assessments was favorable. But the case worker disagreed with the therapist. She was aware that the only assessment of Mother was over two years old by the time of trial, but found it “difficult to say” whether getting a current assessment would have been appropriate. Though she applauded Mother's progress and participation in her classes, “given her history and the reason that this case is open,” the case worker said she would have concerns about delaying permanency for E.C. or returning him to Mother's care.

The GAL filed a post-trial recommendation concluding that Mother showed a “great deal of interest” in and “may indeed have a bond” with E.C. and that she “possibly” did the best she could by providing some monetary support. The GAL said that Mother “virtually completed her written service agreement” and believed additional services “may or may not” bring a lasting adjustment for Mother in the foreseeable future. Nevertheless, due to Mother's “numerous, deliberate and violent acts against the child's older siblings, the child has been deprived of a stable home for more than four years.” These acts of abuse, the GAL concluded, “put the child at substantial risk of both physical and emotional damage.” Thus, the GAL recommended termination.

The trial court terminated Mother's rights on grounds that E.C. was “abused/neglected” under Section 211.447.5(2) and then addressed the conditions or acts of the parent under subparagraphs (a) through (d) of that provision. The court found no evidence of a mental condition or chemical dependency under (a) or (b). Under subparagraph (c), the trial court found that Mother had “committed a severe act or recurrent acts” of physical or emotional abuse against this child or another child in the family. The court cited Mother's admission to physical abuse of E.C.'s sister, which led to the court's jurisdiction. It referenced her plea of guilty to a felony in relation thereto, which included abuse during 2009 through 2011, and for which Mother was still incarcerated at the time of trial. The court also found evidence of abuse prior to the time frame captured in the plea, namely the hotline calls and injuries between 2007 and 2009 resulting from Mother's abuse of both of E.C.'s siblings. The trial court also found that, while in Mother's care, all of the children “experienced emotional abuse through fear and trauma as a result of the physical abuse perpetrated by Mother.”

Under subparagraph (d), the trial court found that Mother had “repeatedly and continuously failed,” although physically or financially able, to provide E.C. with adequate food, clothing, shelter or other care and control necessary for his physical, mental or emotional health and development. It listed the minimal items Mother provided at only some of her visits before her incarceration. The court found no evidence that Mother was unable to work or contribute to E.C.'s support during that time. Moreover, the court found that Mother was able to work—and did work—while incarcerated, but still failed to provide any financial assistance except one payment of some undisclosed amount.

Mother appeals, contending that the court erred by failing to engage in the prospective analysis required by the Supreme Court in In re K.A.W., 133 S.W.3d 1, 12 (Mo.banc 2004)

. She contends that the court relied on only her past acts of abuse—not on her conduct at the time of termination—and failed to address the future harm to this child. We agree.

Under K.A.W.

, the trial court must engage in a prospective analysis to determine whether grounds for termination exist. 133 S.W.3d at 9. “An essential part of any determination whether to terminate parental rights is whether, considered at the time of the termination and looking to the future, the child would be harmed by a continued relationship with the parent.” Id.³ Though the trial court may consider the parent's past conduct, “it is insufficient merely to point to past acts, note that they resulted in abuse or neglect and then terminate parental rights.” Id. Rather, past behavior can support grounds for termination “only if it is convincingly linked to predicted future behavior” and there must be “some explicit consideration of whether the past acts provide an indication of the likelihood of future harm.” Id. at 9–10.

Except for the fact that Mother was incarcerated at the time of termination, the trial court cited exclusively to the past conduct of Mother in finding the abuse and neglect grounds for termination. It cited her physical abuse of E.C.'s siblings before the court took jurisdiction, the emotional...