In re K.A.W.

• Decision Date: 30 March 2004
• Docket Number: No. SC 85683.,SC 85683.
• Citation: 133 S.W.3d 1
• Parties: In the Interest of K.A.W. and K.A.W.
• Court: Missouri Supreme Court

133 S.W.3d 1

In the Interest of K.A.W. and K.A.W.

No. SC 85683.

Supreme Court of Missouri, En Banc.

March 30, 2004.

Rehearing Denied May 25, 2004.

Chris E. Rollins, Kayla Vaughan, St. Louis, Mark H. Kruger, Clayton, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Gary L. Gardner, Asst. Atty. Gen., Jefferson City, Bryan L. Hettenbach, Town & Country, Karen A. Dill, Donna L. Head, Susan C. Guerra, R. Jeff Childress, Division of Legal Services, St. Louis, Bernhardt W. Klippel, III, Clayton, for Respondent.

RICHARD B. TEITELMAN, Judge.

I. Introduction and jurisdiction

K.A.W. and K.A.W. (twins) are minor children born to T.W. ("Mother"). Mother's parental rights were terminated on December 11, 2002, pursuant to section 211.447,¹ and she appeals.² Mother argues that the trial court's findings with respect to sections 211.447.4(2), (3) and (6) and 211.447.6 were insufficient. She also contends that the trial court erred because it failed to make required findings.

This case was transferred to this Court prior to disposition by the court of appeals because of this Court's desire to resolve this case forthwith in accordance with the admonition of section 453.011.1 that cases involving termination of parental rights and adoption be given priority.³

The judgment is reversed, and the cause is remanded. If further proceedings include the termination of Mother's parental rights, the trial court is directed to consider and make findings on each of the statutorily required subdivisions or factors for all grounds for termination of parental rights on which the trial court bases its decision.

II. Facts

When Mother was pregnant with the twins she was already raising three other young children on her own while trying to hold a job. Overwhelmed, she struggled with the question of whether it was best to place her twins up for adoption. Eventually, Mother decided that she should place them up for adoption because, as she later testified, she wanted them "to have a better life."

The twin girls were born in June 2000, approximately three months premature. They required a two-month hospital stay. Although Mother had decided to place her twins for adoption, she did not abandon them. Rather, she visited the twins in the hospital daily and continued caring for them, holding, feeding and talking to them. Mother expressed breastmilk for their best care rather than allowing them to be fed formula. She took a special class to learn more about how to care for her premature twins. When the twins were released from the hospital, Mother woke hourly to feed and administer medicine to them, while still maintaining her obligations to her other children and her job.

While caring for her children, Mother carefully tried to investigate prospective families that might be suitable for the twins. She obtained the help of adoption professionals and attorneys. She expressed interest in an "open adoption" so that she could maintain contact with the twins and continue to support them. Mother was told she would need to look beyond Missouri, which does not allow "open adoption."⁴

An adoption facilitator presented a prospective family from California. Mother visited the couple for 10 days to be sure they were fit. Later, Mother became convinced that the California couple was not as good a placement as she originally believed (among other things, they were becoming reluctant to maintain contact), so when she was in California for a visit, she retained the twins in her custody and began to seek another placement. Mother was advised that a British couple was still interested in adopting her babies. Mother had previously investigated the couple and believed them to be excellent candidates. The husband was an attorney, and the couple supported doing an open adoption. The British couple came to California, and the twins, Mother and the couple traveled a circuitous route from California to Arkansas by car. Mother was counseled by a British social worker and three attorneys that she should complete the adoption there because open adoption was not permitted in Missouri. Mother was advised to claim that she was an Arkansas resident. She refused, but she did provide an Arkansas address that belonged to a relative. An Arkansas judge approved the adoption.

Eventually, British officials determined that the British couple was unfit. The twins were taken into the custody of a British children's services agency. The Arkansas court entered an order setting aside the adoption decree for lack of jurisdiction because none of the parties were Arkansas residents. The twins were returned to Missouri, where they were placed in the custody of the Missouri division of family services (DFS).

When Mother learned that the second adoption effort had failed, she decided that adoption was not the appropriate option, and she resolved to rear the babies herself and rally the support of her family so that she could do it well.⁵

The record indicates that, once DFS gained jurisdiction of the twins, Mother's equivocation ceased other than a few week period shortly after DFS took jurisdiction, when she considered allowing the foster parents to adopt the children but ultimately rejected that alternative and strove to gain back custody of the twins instead. After DFS gained jurisdiction of the twins, there is no evidence that any of Mother's conduct would indicate a likelihood of future problems. Instead, all of the evidence indicates that Mother remedied every potential problem noted by DFS. She complied fully with DFS's entire parenting plan, which had as its ostensible goal reunification:

• The plan required Mother to take parenting classes. Mother took parenting classes, and her instructor testified that Mother was the most involved and participatory member of the class.

• The plan required Mother to visit the twins regularly. Mother visited the twins as often as the court would allow and fought for the right to visit more frequently.

• The plan required Mother to provide financial support for the twins. Mother did so and frequently paid in advance.

• Mother was required to undergo a psychological examination, and she did so willingly. On her own initiative, she also obtained counseling.

• She submitted to drug screenings (which she passed) although there was no allegation of drug use.

A DFS worker later testified that Mother complied with everything that had been asked of her including every element of the plan. Nevertheless, the juvenile officer filed a petition to terminate Mother's parental rights. The petition alleged that termination was warranted according to sections 211.447.4(2), (3) and (6) and that termination was in the twins' best interests.

III. Trial court's findings, conclusions and judgment

The trial court conducted a hearing and issued "Findings, Conclusions and Judgment Terminating Parental Rights." The trial court's findings incorporated its earlier "Findings and Judgment of Disposition" and "Permanency Planning Order." The trial court terminated Mother's parental rights under subdivisions (2), (3) and (6) of section 211.447.4, ruling:

15.... "Mother" has abused and neglected "The Twins". Section 211.447.4(2), RSMo.

(a) "Mother" has committed severe and recurrent acts of emotional abuse toward "The Twins." Section 211.447.4(2)(c), RSMo. These acts include the multiple, unstable, inappropriate, temporary placements including, but not limited to, placements in California, Arkansas, and Great Britain within a span of a few months during the first months of "The Twins" lives....

16.... [T]he conditions which caused this Court to assume jurisdiction over "The Twins" or conditions of a potentially harmful nature continue to exist and will not be remedied at an early date to permit return of "The Twins" in the near future to the custody of "Mother", and under all the circumstances, continuation of any relationship between the "Mother" and "The Twins" greatly diminishes the prospects of "The Twins" for early integration into a stable and permanent home. Section 211.447.4(3), RSMo. These conditions include, but are not limited to, the multiple placements of "The Twins" during the first months of their lives and the resulting instability; "Mother's" continued stress and being overwhelmed with the reality of The Twins; the continued indecisiveness of "Mother" in dealing with "The Twins"; and the lack of family support for "Mother" in caring for the needs of "The Twins." Additionally, further movement of "The Twins" from the stability of their environment since April 18, 2001, would be harmful to "The Twins" in light of the Reactive Detachment [sic] Disorder in Partial Remission, a major mental disorder, suffered by "The Twins" as a result of the multiple placements and resulting instability....

17..... "Mother" is unfit to be a party to the parent-child relationship with "The Twins" because of her consistent pattern of emotional abuse and, additionally, because of specific conditions directly relating to her relationship with "The Twins", all of which are of a duration and nature rendering "Mother" unable for the reasonably foreseeable future to care appropriately for the ongoing physical, mental and emotional needs of "The Twins". Section 211.447.4(6), RSMo. These considerations include, but are not limited to, "Mother's" continued indecisiveness in dealing with the lives of "The Twins" and their welfare; and the lack of family support for "Mother" in caring for health and welfare of "The Twins"....

...

19.... [T]here are no emotional ties between "The Twins" and "Mother". This is a direct result of the actions of "Mother" in her multiple placements of "The Twins" and resulting instability and emotional harm suffered by "The Twins". Section 211.447.6(1), RSMo.

20.... "The Twins" are not bonded with "Mother". This is a direct result of the deliberate acts of "Mother", who knew or should have known said acts would subject "The Twins" to a substantial...