In re L.J.D.

• Decision Date: 15 November 2011
• Docket Number: No. ED 96322.,ED 96322.
• Citation: 352 S.W.3d 658
• Parties: In the Interest of L.J.D., a minor child.
• Court: Missouri Court of Appeals

352 S.W.3d 658

In the Interest of L.J.D., a minor child.

No. ED 96322.

Missouri Court of Appeals, Eastern District, Division Five.

Nov. 15, 2011.

Lance M. McClamroch, The Law Offices of Patrick E. Richardson, P.C., Kirksville, MO, for Appellant.

Chris Koster, Attorney General, Gary L. Gardner, Assistant Attorney General, Jefferson City, MO, for Respondent.

KURT S. ODENWALD, Chief Judge.

Introduction

Appellant Sara Welch (Welch) appeals from the trial court's order terminating her parental rights to her minor child L.J.D. The trial court found substantial evidence to terminate Welch's parental rights under Sections 211.447.5(2) and (3), RSMo. Cum.Supp.2010 ¹. In particular, the trial court held Welch's mental retardation and depression were permanent or near-permanent mental illnesses that rendered her incapable of knowingly providing care to L.J.D.; Welch continuously failed to provide an adequate home for L.J.D.; and Welch made only minimal progress toward the goals and tasks of her two social service agreements. The trial court further found that additional services were unlikely to help Welch sufficiently improve her parental capacity, and that the termination of Welch's parental rights was in the best interest of the child. Because insufficient evidence exists to support the termination of Welch's parental rights at this time, we reverse the judgment of the trial court and remand this matter for proceedings consistent with this opinion.

Factual and Procedural History

L.J.D. was born to Welch and Daniel Damon on June 26, 2007. L.J.D. remained in Welch's care for the first eleven months of his life. In March 2008, a juvenile officer filed a child neglect petition and removed L.J.D. from Welch's care due to the unsanitary condition of Welch and L.J.D.'s home. L.J.D. was placed under the temporary protective custody of the Missouri Department of Social Services, Children's Division (hereinafter “DSS”). In June 2008, following an evidentiary hearing, the trial court found the allegations of the child neglect petition true and placed L.J.D. in the legal custody of DSS, which placed L.J.D. in foster care. Following L.J.D.'s removal, Welch received considerable social services designed to support eventual reunification. Welch also entered into two separate social service agreements with DSS wherein she agreed to make changes and take steps to improve her parenting skills and create a safe home for L.J.D. In April 2009, DSS initiated proceedings for termination of parental rights and adoption. Damon voluntarily consented to termination of his own parental rights.

In October 2010, the Juvenile Court for Clark County held a hearing on DSS's petition to terminate Welch's parental rights. DSS presented evidence that L.J.D. suffers from severe asthma for which he receives an extensive prescription drug treatment regimen. L.J.D.'s primary physician testified that L.J.D. experiences serious asthma attacks and that, although he had never tested L.J.D.'s sensitivity to smoke, exposure to cigarette smoke could increase the frequency of attacks in some patients with asthma.

The trial court also heard testimony from Dr. Karen MacDonald, who testified regarding Welch's mental illness. Dr. MacDonald testified that she conducted a battery of tests on Welch during a single testing session. Based on the results of Welch's testing, Dr. MacDonald testified that she concluded that Welch had mild mental retardation and depression. Dr. MacDonald further testified that these conditions could impair Welch's ability to be an effective parent.

Ms. P.J. Parker, a DSS social worker who had coordinated services for Welch and L.J.D., also testified before the trial court. Parker testified that she had conducted multiple inspections of Welch's home, originally finding it in an extraordinarily unsanitary condition. Parker testified that Welch significantly improved the cleanliness of her home, but that some of the original conditions persisted. The trial court also heard the testimony of Welch, who testified regarding the social services she had accepted and the improvements she had made toward her parenting skills and living environment in order to have custody of L.J.D returned to her.

The trial court terminated Welch's parental rights in December 2010 on grounds of abuse or neglect and failure to rectify a dangerous condition. The trial court found that Welch had mental retardation and depression which prevented her from properly caring for L.J.D., and, further, that Welch continuously failed to provide an adequately clean and safe home environment. In support of its decision to terminate Welch's parental rights for failure to rectify a dangerous condition, the trial court found that Welch failed to make progress toward the goals of her social service plans, that further social services would be futile in promoting reconciliation, and that Welch's mental illness impeded her ability to effectively parent L.J.D. The trial court also found that termination of Welch's parental rights was in L.J.D.'s best interest. Welch now appeals.

Points on Appeal

Welch raises six points on appeal. Welch asserts that the trial court lacked sufficient evidence to find that (1) Welch has a mental condition that is permanent, or without likelihood that it could be reversed, that caused her to be unable to knowingly provide L.J.D. adequate care; (2) Welch continuously failed to provide an adequate home for her child's wellbeing; (3) Welch made only minimal progress toward the accomplishment of goals established in Welch's two social service agreements; (4) efforts made by DSS to aid Welch in providing an adequate home had little success, or hope of future success; (5) there was no emotional bond between Welch and L.J.D.; and (6) due to Welch's cognitive disability, it was unlikely that Welch would ever become capable of properly parenting L.J.D. even through the use of additional services.

Standard of Review

In termination of parental rights cases, we defer to the trial court's judgment as to the credibility of witnesses and affirm the judgment unless (1) there is no substantial evidence to support the judgment, (2) the judgment is contrary to the evidence, or (3) the trial court erred in its application of the law. In re K.A.W., 133 S.W.3d 1, 11 (Mo. banc 2004). Substantial evidence is “clear, cogent, and convincing 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 the abiding conviction that the evidence is true.” Id. We review conflicting evidence in the light most favorable to the judgment of the trial court. Id.

A parent's right to raise his or her children is one of the oldest and most fundamental liberty interests guaranteed by the Constitution. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The termination of parental rights has been characterized as tantamount to a “civil death penalty.” In re K.A.W., 133 S.W.3d at 12 (quotations omitted). Therefore, we closely review a trial court's findings of fact and conclusions of law and strictly construe statutes that provide for the termination of parental rights in favor of the preservation of natural parents and the parent-child relationship. Id.

A trial court's determination regarding whether termination of parental rights is in the best interest of the child is a subjective assessment based on the totality of the circumstances. In re A.A.T.N., 181 S.W.3d 161, 171 (Mo.App. E.D.2005). Therefore, the Court uses an abuse of discretion standard to review whether termination of parental rights is in the child's best interest and does not reweigh the evidence. See Id.

Discussion

Involuntary termination of parental rights may be ordered if the termination is judged to be in the best interest of the child and upon clear, cogent, and convincing evidence that (1) the parent is found to have abused or neglected the child, or (2) the child has been under juvenile court jurisdiction for one year and the court determines that the conditions that brought about the court's jurisdiction still exist, or other potentially harmful conditions currently exist. Sections 211.447.5(2), (3); In re S.M.H., 160 S.W.3d 355, 362 (Mo. banc 2005). The presence of sufficient evidence to support either statutory ground is sufficient to terminate a parent's rights. In re S.M.H., 160 S.W.3d at 362.

I. The trial court erred in terminating Welch's parental rights under Sections 211.447.5(2) and 211.447.5(3)(c).

A trial court may terminate parental rights under Section 211.447.5(2) if it finds that the parent has abused or neglected the child. Section 211.447.5(2). Before terminating parental rights under this section, the court must make findings regarding the following four factors:

(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...