In re N.J.S.
| Decision Date | 03 February 2009 |
| Docket Number | No. ED 90936.,ED 90936. |
| Citation | 276 S.W.3d 397 |
| Parties | In the Interest of N.J.S. and A.D.S. |
| Court | Missouri Court of Appeals |
Mark D. Potts, Hannibal, MO, for Appellant.
Joseph A. Brannon, Andrew W. Briscoe, New London, MO, for Respondent Juvenile Officer.
Thomas R. Motley, Hannibal, MO, for Respondent Guardian Ad Litem.
Mother appeals the judgments terminating her parental rights to N.J.S. and A.D.S.1 We affirm.
Mother is the mother of N.J.S., a daughter born on April 13, 2007, and A.D.S., a son born on August 28, 2005. On June 7, 2007, N.J.S. was taken to the hospital to be treated for severe life threatening injuries. The extensive list of injuries included multiple bruises of the skin, skull fractures, impact injury to the substance of the brain (brain contusions), bruising of the lungs (pulmonary contusion), broken ribs, bleeding into the lining of the brain, midline shift of the brain to one side caused by brain swelling, liver laceration, and a pelvic bone fracture. N.J.S. and her brother A.D.S. were taken into the custody of the Children's Division on June 21.
Once the children were in the Division's custody, the juvenile court entered a judgment and order of disposition following a permanency hearing. After finding that N.J.S. was taken into custody in an emergency situation, the court explained that as of July 23, 2007, the Division was relieved of providing reasonable efforts toward reunification under section 211.183.7 RSMo 2000.2
The juvenile office filed petitions for termination of Mother's parental rights to N.J.S. and A.D.S. on August 20, 2007. The petitions were based on section 211.447.4(2), which allows parental rights to be terminated where the child has been abused and neglected, and section 211.447.4(6), which allows parental rights to be terminated where the parent is unfit to be a party to the parent and child relationship. The petitions also alleged that termination of Mother's parental rights was in the best interests of the children.
At the hearing on the termination petitions, counsel for the juvenile office questioned Mother as to the cause of N.J.S.'s injuries. According to Mother, she left the children with her boyfriend, while she went to buy ice cream. When she returned, N.J.S. was "having seizures" so she called 911. Mother's boyfriend told her that N.J.S. was sitting in her car seat when A.D.S. tipped her over. She also thought A.D.S. may have injured N.J.S. by hitting her in the head with a plastic toy. Mother acknowledged that she no longer believed her boyfriend's story regarding how the injuries occurred, but maintained that she could not say what really happened since she was not there.
Robert Paschal, M.D., a pediatrician specializing in child abuse pediatrics, treated N.J.S. for her injuries. He testified about the nature and severity of the injuries, indicating that if they were left untreated, N.J.S. would have died. Dr. Paschal explained that N.J.S.'s injuries were caused by force sufficient enough that the person inflicting the injury would know it would likely result in severe injury. He stated that Mother and her boyfriend did not offer any plausible explanation as to the cause of N.J.S.'s injuries. He opined that, within a reasonable degree of medical certainty, N.J.S. was a victim of physical abuse. Finally, Dr. Paschal testified that he found evidence of an additional injury — a single healing rib fracture that was ten to fourteen days older than the injuries of June 6.
Other testimony at the hearing revealed that Mother's boyfriend was physically abusive toward Mother prior to June 7, 2007. Although Mother testified that her boyfriend was never violent in front of the children, Mother's cousin stated that Mother's boyfriend hit Mother in front of the children on at least one occasion. Mother continued her relationship with her boyfriend for at least two months after N.J.S. suffered injuries and the children were taken into custody.
Once the children were in custody, Mother attended almost all of her one-hour-per-week supervised visits before being incarcerated on criminal charges, including assault and theft. On one occasion, Mother asked if her boyfriend could accompany her. On another occasion, Mother left early after arguing with her father. Division workers testified that Mother got along well with her children, although she had difficulty managing both at the same time. Mother testified that she visited a counselor to help her cope with depression and stress. Although Mother brought clothes, toothbrushes and toys to the children when she came to visit, she did not provide any financial support even at times when she was working.
All representatives of the juvenile office testified that they recommended termination of Mother's parental rights. They based this determination on Mother's inability to provide a plausible explanation for N.J.S.'s life-threatening injuries while she was in Mother's care. They also noted that Mother continued her relationship with her boyfriend despite his alleged involvement in N.J.S.'s injuries and his otherwise abusive nature. Finally, they raised concern about Mother's incarceration since, by committing crimes preventing her from being able to provide for their needs, Mother demonstrated she was unable to put her children first. The children's guardian ad litem agreed that termination of Mother's parental rights was in the best interest of the children. The juvenile court entered judgments terminating Mother's parental rights to N.J.S. and A.D.S.3 Mother appeals.4
We will affirm the juvenile court's judgment terminating a parent's parental rights unless no substantial evidence supports it, it is contrary to the weight of the evidence, or it erroneously declares or applies the law. In re P.L.O., 131 S.W.3d 782, 788-89 (Mo. banc 2004). We defer to the fact-findings of the juvenile court and consider all evidence and reasonable inferences in the light most favorable to the judgment. Id. at 789.
Mother argues in her first point that the trial court erred in terminating her parental rights to N.J.S. and A.D.S. because there was no clear, cogent, and convincing evidence to support a finding that she abused or neglected the children under 211.447.4(2). Section 211.447.4(2) permits the juvenile court to terminate a parent's parental rights when clear, cogent and convincing evidence indicates that the child has been abused or neglected. See section 211.447.5 (). "Clear, cogent and convincing evidence" is described as 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." In re E.D.M., 126 S.W.3d 488, 492 (Mo.App. W.D.2004).
When determining whether a child has been abused or neglected under section 211.447.4(2), the court is required to make specific findings on each of the four factors listed in subsections (a) through (d). In re K.A.W., 133 S.W.3d 1, 16 (Mo. banc 2004). Even if a factor is not relevant to the case, the court should state why the given factor is not relevant. Id. Here, the juvenile court specifically found that there was insufficient evidence to support a finding that the children were abused or neglected under the first two factors (i.e., that Mother suffers from a mental condition or a chemical dependency that renders her unable to care for the children under sections 211.447.4(2)(a) and (b)). However, the juvenile court found that compelling evidence supported a finding that the children were abused and neglected under sections 211.447.4(2)(c) and (d).
Section 211.447.4(2)(c) requires the court to consider whether the parent has committed a
severe act or recurrent acts of physical, emotional or sexual abuse toward the child or any child in the family by the parent ... 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....
The juvenile court listed specific incidents of abuse under this finding. In particular, the court noted that Mother failed to prevent the severe acts of abuse toward N.J.S. even though she knew or should have known that such acts were being committed. The court was concerned with Mother's testimony that she was afraid of her boyfriend and could not cease her relationship despite the threat he posed to her and her children. It also explained that Mother was aware of her boyfriend's abusive nature yet she allowed him to supervise the children in her absence. Finally, the court emphasized that the evidence showed N.J.S. had already suffered a rib fracture prior to the extensive injuries of June 6, 2007.
Mother argues that the evidence does not support a finding in favor of termination under section 211.447.4(2)(c) because "there is insufficient evidence to find that more than one act of abuse occurred." In doing so, she asserts that the only "incident" that could be considered physical abuse happened within a five to fifteen minute period. Mother also claims that there is no evidence she committed any abuse. She then interprets the statute as requiring more than one "act" of abuse to occur where someone other than the parent inflicts injuries since the statute uses the phrase "such acts" when discussing the significance of another's act of abuse...
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