In re Interest of J.G.W.

• Citation: 613 S.W.3d 474
• Decision Date: 17 November 2020
• Docket Number: No. ED 108803,ED 108803
• Parties: In the INTEREST OF: J.G.W.
• Court: Court of Appeal of Missouri (US)

613 S.W.3d 474

In the INTEREST OF: J.G.W.

No. ED 108803

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: November 17, 2020

Introduction

L.M.W. ("Mother") appeals the judgments of the trial court terminating her parental rights to her children, J.G.W. and D.R.W. (the "Children").¹ The trial court concluded termination was proper on numerous grounds under section 211.447.5.² Mother appeals, challenging the sufficiency of the evidence to support the trial court's finding that grounds for termination under sections 211.447.5(2) and 211.447.5(3) were satisfied. Mother also challenges the sufficiency of the evidence supporting the trial court's finding that termination was in the Children's best interests under section 211.447.7.

We find substantial evidence supports termination of Mother's parental rights on the ground of neglect under section 211.447.5(2); thus, we need not address whether substantial evidence supports termination of Mother's parental rights on any other ground. We also find substantial evidence supports termination of Mother's parental rights was in the best interests of the Children under section 211.447.7. The trial court's judgment is affirmed.

Factual and Procedural Background³

Mother is the biological mother of the Children. On September 6, 2016, the Children came under the jurisdiction of the trial court after the trial court found the Children's two-year-old sibling sustained bruising to his face and abdomen and died of his injuries while under the care and custody of Mother and Mother's then-boyfriend.⁴ On November 14, 2016, legal and physical custody of the Children was transferred to the Missouri Department of Social Services, Children's Division ("Children's Division").

On August 1, 2018, Children's Division filed petitions to terminate Mother's parental rights. The petitions asserted, under section 211.447.5(2), the Children were abused or neglected and, under section 211.447.5(3), the Children had been under the trial court's jurisdiction continuously for at least one year and Mother failed to rectify the potentially harmful conditions that would allow the Children to return to Mother's care in the near future. In addition, the petitions asserted, under section 211.447.7, termination of Mother's parental rights was in the best interests of the Children. On July 15, 2019, the Children's Division filed amended petitions to terminate Mother's parental rights. The amended petitions also asserted that, under section 211.447.5(5), Mother was unfit to be a party to the parent-child relationship because of a consistent pattern of committing a specific abuse.

A trial was held on July 30, July 31, and August 14, 2019, to determine whether there were statutory grounds to terminate Mother's parental rights and whether termination of Mother's parental rights was in the Children's best interests. The trial court took judicial notice of the records in the Children's underlying abuse and neglect proceedings.⁵ The Children's case manager, the Children's therapist, Mother's aunt, the Children's foster mother, Mother's therapist, Mother's psychologist, and several professionals supervising Mother's involvement in parenting education programs and visitation testified at trial. Mother did not testify.

On November 29, 2019, the trial court terminated Mother's rights to the Children. The trial court's judgment⁶ indicated that, according to section 211.447.5, there were three bases to terminate Mother's parental rights: abuse or neglect,⁷ failure to rectify,⁸ and parental unfitness.⁹ The trial court also found, under section 211.447.7, it was in the best interest of the Children that Mother's parental rights be terminated.

This appeal follows. Additional facts are discussed in the analysis portion of this Opinion as necessary.

Standard of Review

"This Court reviews whether clear, cogent, and convincing evidence was presented to support a statutory ground for terminating parental rights under Murphy v. Carron , 536 S.W.2d 30 (Mo. banc 1976)." J.A.R. v. D.G.R. , 426 S.W.3d 624, 626 (Mo. banc 2014) (quoting In re Adoption of C.M.B.R. , 332 S.W.3d 793, 815-16 (Mo. banc 2011) ). Accordingly, we will affirm the trial court's judgment "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." Id. We will only reverse the trial court's judgment "if we are left with a firm belief that the order is wrong." Id.

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 finder of fact is left with an abiding conviction that the evidence is true." Interest of J.L.D. , 560 S.W.3d 906, 911 (Mo. App. E.D. 2018) (quotations omitted). "After this Court determines that one or more statutory ground has been proven by clear, convincing, and cogent evidence, this Court must ask whether termination of parental rights was in the best interest of the child." J.A.R. , 426 S.W.3d at 626. "At the trial level, the standard of proof for this best interest inquiry is a preponderance of the evidence; on appeal, the standard of review is abuse of discretion." Id. "Judicial discretion is abused when a court's ruling is clearly against the logic of the circumstances then before the court and so arbitrarily and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." In Interest of A.R.T. , 496 S.W.3d 610, 618 (Mo. App. S.D. 2016). "If reasonable minds can differ about the propriety of the trial court's ruling, there was no abuse of discretion." G.J.R.B. v. J.K.B. , 269 S.W.3d 546, 556 (Mo. App. S.D. 2008). "We are ... not permitted to substitute our judgment for that of the trial court, but must abide by its decision so long as reasonable minds may differ about the propriety of its ruling." Id.

"In reviewing questions of fact, the reviewing court will defer to the trial court's assessment of the evidence if any facts relevant to an issue are contested." Pearson v. Koster , 367 S.W.3d 36, 44 (Mo. banc 2012) (citing White v. Dir. of Revenue , 321 S.W.3d 298, 308 (Mo. banc 2010) ). "[A] trial court is free to disbelieve any, all, or none of the evidence and the appellate court's role is not to re-evaluate testimony through its own perspective." Id. at 308-09. "The trial court receives deference on factual issues because it is in a better position not only to judge the credibility of the witnesses and the persons directly, but also their sincerity and character and other intangibles which may not be completely revealed by the record." Id.

Discussion

Point I: Abuse and Neglect (Section 211.447.5(2))

In her first point, Mother argues no clear, cogent, and convincing evidence exists to support the trial court's finding Mother abused or neglected the Children under section 211.447.5(2). We disagree.

Under section 211.447.5(2), parental rights may be terminated if:

The child has been abused or neglected. In determining whether to terminate parental rights pursuant to this subdivision, the court shall consider and make findings on the following conditions or acts of the parent:

(a) 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;

(b) Chemical dependency which prevents the parent from consistently providing the necessary care, custody and control of the child and which cannot be treated so as to enable the parent to consistently provide such care, custody and control;

(c) A severe act or recurrent acts of physical, emotional or sexual abuse toward the child or any child in the family by the parent, including an act of incest, or by another under circumstances that indicate that the parent knew or should have known that such acts were being committed toward the child or any child in the family; or

(d) Repeated or continuous failure by the parent, although physically or financially able, to provide the child with adequate food, clothing, shelter, or education as defined by law, or other care and control necessary for the child's physical, mental, or emotional health and development.

"While the trial court must make findings on each factor, parental rights may be terminated on the finding of one factor." In re B.J.H., Jr. , 356 S.W.3d 816, 828 (Mo. App. W.D. 2012) (emphasis added) (citing In re T.M.E. , 169 S.W.3d 581, 585 (Mo. App. W.D. 2005) ).

Trial Court's Findings

The trial court found the Children were adjudicated abused or neglected on September 6, 2016, when the trial court found the allegation that the Children's two-year-old sibling sustained bruising to his face and abdomen and died of his injuries while under the care and custody of Mother and Mother's then-boyfriend was true. The trial court noted Mother does not challenge the validity of that adjudication and concluded Mother continued to neglect the Children at the time of the termination trial. The trial court then made specific findings regarding the factors set out in section 211.447.5(2).

Regarding Mother's mental condition, the trial court found: "There was substantial evidence presented that Mother suffers from a mental condition which cannot be reversed and which renders Mother unable to knowingly provide the Child[ren] with necessary care, custody, and control." The evidence showed Mother has "multiple diagnoses," including "schizophrenia

, multiple episodes, currently in partial remission (by history); major depressive disorder, recurrent (at times severe without psychotic features); posttraumatic stress disorder ; ED NOS (eating disorder, not otherwise specified); ADHD and borderline personality disorder." The evidence showed "Mother's symptoms when not medicated include flashbacks, nightmares, suicidal ideations

, homicidal ideations,...