In re Of, ED 106532

Citation560 S.W.3d 906
Decision Date06 November 2018
Docket NumberED 106532
Parties In the INTEREST OF J.L.D. and I.N.D., minor children.
CourtCourt of Appeal of Missouri (US)

560 S.W.3d 906

In the INTEREST OF J.L.D. and I.N.D., minor children.

ED 106532

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: November 6, 2018


Christopher M. Braeske, 8008 Carondelet Avenue, Suite 300, Clayton, MO 63105, for appellant.

Siobhan K. Akers, 105 S. Central Avenue, Clayton, MO 63105, for respondent.

Gary M. Gaertner, Jr., Judge

Introduction

C.N.N. (Mother) appeals the trial court’s judgment terminating her parental rights to her two minor children, J.L.D. and I.N.D. While almost all termination of parental rights (TPR) cases are sad, here we face a situation in which either outcome is unfortunate for Mother, the children, or both. This is because the trial court terminated Mother’s parental rights at a point in time when Mother had not been permitted to see her children for nearly two years, and the children’s bond to their mother had understandably waned, leaving them strongly desiring to stay with their foster parents. At the same time, while Mother made substantial progress toward the objectives of her service plan, she was a poor woman, dealing with domestic violence, who had trouble securing her own stable housing and employment. Given the lack of the children’s bond to their Mother, reinstating visits and potentially returning them to her custody in the future is difficult. However, given Mother’s progress toward changing her circumstances and improving herself, it is also difficult to see what more Mother should or could have done besides simply doing it more quickly, and termination of parental rights is never something this Court or any Missouri court takes lightly.

The statute governing termination of parental rights, Section 211.447,1 requires consideration of both the parent’s progress toward eliminating a harmful situation and the child’s best interests. However, the statute first requires the trial court to find a ground for termination, which focuses on the conduct of the parent, before the statute requires the trial court to consider the best interests of the child. Section 211.447.7; In re N.R.W., 112 S.W.3d 465, 468 (Mo. App. W.D. 2003) (TPR is "two-step analysis ... if (and only if) grounds for termination exist, the trial court must determine whether [TPR] is in the child’s best interest").

While certainly the impact on the children of any decision regarding their custody is of utmost importance, and in fact the grounds for a TPR require foremost consideration of the children’s safety, Missouri’s legislature and its courts have made clear that the parent-child relationship deserves fundamental protection, and we should seldom, if ever, terminate that parent-child relationship, especially where a parent has made progress, albeit imperfect, toward improving that relationship and creating a safer environment for their children. In re S.M.H., 160 S.W.3d 355, 368-69 (Mo. banc 2005) ("The issue is

560 S.W.3d 909

whether progress has been made in complying with the service agreements, not whether there has been full or substantial compliance"). The primary issue is not whether the children would have more care and opportunity in another home (if this was the standard, many children who are not abused would be justifiably removed from their homes), but whether the parent-child relationship is potentially harmful in the ways that led the trial court to take jurisdiction over the children. See In re B.S.B., 76 S.W.3d 318, 335-36 (Mo. App. W.D. 2002) ("The issue is not whether the children would be better off in another home. Although the primary concern is always the best interests of the children, before the court can reach the issue of children’s best interests, there must be sufficient proof of acts authorizing termination under the statutes" (citation and quotation omitted) ); see also In re K.A.W., 133 S.W.3d 1, 9-10 (Mo. banc 2004) (past behavior must be linked to likelihood of future harm).

Considering this structure of the law in Missouri, along with the full record here, though we acknowledge the long road ahead and the hardship non-termination could place on these two children in the future should Mother and the children not receive therapeutic support to repair the parent-child relationship, we cannot say that substantial evidence supported the trial court’s finding of clear, cogent, and convincing evidence of a ground for termination that instantly tilted the scales in favor of termination. See K.A.W., 133 S.W.3d at 12. We reverse and remand.

Background

In February of 2016, the Juvenile Officer of St. Louis County filed a petition to terminate the parental rights of Mother2 to J.L.D. (J.D.), who was ten years old at the time of filing, and I.L.D. (I.D.), who was nine years old (collectively, "the children"). On July 21, 2014, the trial court adjudicated the children abused and neglected, and since then, the children have been under the jurisdiction of the court. That adjudication arose from an incident in which the children’s older siblings had gotten into a physically violent altercation with the children’s father, M.D. (Father).

Since that time, the children have been together in the same foster care placement. Mother entered a written service agreement with Children’s Division, which initially had the goal of reunification. The plan provided supervised visits twice per month, and Mother agreed to make voluntary financial contributions toward the children’s support, participate in a parenting assessment, attend counseling as directed by Children’s Division, and maintain adequate housing.

Mother participated in a psychological evaluation and parenting assessment with Dr. Lisa Emmenegger in October and November of 2014, Dr. Emmenegger diagnosed Appellant with an unspecified personality disorder, relationship stress with an intimate partner, a parent-child relationship problem, partner violence, and ruled out perpetrator partner violence. Dr. Emmenegger recommended Mother see a different therapist than Father, and that Mother participate in domestic violence and parenting classes. Mother participated in individual therapy with Dr. Renee Smola until April of 2015, when Dr. Smola discharged Mother after completing domestic violence education and prevention. In the spring of 2016, Mother also obtained

560 S.W.3d 910

a certificate of completion for a Family Strength class from ROW, a program that educates women on budgeting and parenting. Mother also completed a financial education class through REAP, and domestic violence class through the YMCA. Mother resumed individual therapy in August of 2016, but Dr. Smola terminated therapy in October of 2016 because of missed appointments.

In the meantime, the children received trauma therapy from Dr. Amy Escott from January to August of 2015. During that time, they made several disclosures to Dr. Escott, and they were exhibiting several behaviors requiring treatment. I.D. expressed fear of living with her parents because she might be sexually abused or harmed, fear that her parents would kidnap her, and fear that someone in her family would kill her or her foster-parents. I.D. disclosed that she had been exposed to sexualized contact within the home, seeing her parents engaging in sexual acts, Mother showing her and J.D. videos of Mother and Father engaging in sexual acts, and Father showing her pornography. I.D. also disclosed that Father had beaten her with a belt, and there was an incident in which Father had invited her into the bathroom and then urinated on her. I.D.’s behaviors included inappropriate sexual behaviors, difficulty with peers and being disruptive, and using inappropriate language.

J.D. entered therapy with significant anger and aggression issues, and at times had had behavioral outbursts. J.D. also exhibited behaviors of lying and hoarding food. J.D. disclosed to Dr. Escott that she had seen violence between her parents and between her older siblings and their parents. J.D. also disclosed being in bed with her parents while they were engaging in sexual activity. J.D. stated she had seen Father use the belt to hurt I.D., and that she had seen inappropriate sexual interactions between Mother and Father and between Father and another partner, J.D. expressed fear and worry for her safety and for the safety of her foster parents.

Mother participated in supervised visits with the children from July 9, 2014 through April 3, 2015. On April 15, 2015, Mother’s visits were suspended because she and one of the children’s older siblings followed the children on their way to a visit with their grandmother, and because Mother had violated a court order by having visitation with the older sibling, who was also under the court’s jurisdiction. Visits resumed in May of 2015, but Children’s Division again suspended visits on May 21, 2015, because the children said Mother had showed them something on her phone that indicated the children were going to be adopted. The trial court addressed visitation at a subsequent hearing and denied further visits with Mother.

In May of 2016, the trial court reinstated visitation at the discretion of Children’s Division. Though the children’s therapy had ended in 2015 and their behaviors had improved, Children’s Division requested a consultation with Dr. Escott in August of 2016 because when the children’s case manager brought up the possibility of resuming visits, the children’s negative behaviors...

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4 cases
  • In re Interest of J.G.W.
    • United States
    • Court of Appeal of Missouri (US)
    • November 17, 2020
    ...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 co......
  • Greene Cnty. Juvenile Office v. E.A.F. (In re Interest of C.E.A.)
    • United States
    • Court of Appeal of Missouri (US)
    • May 27, 2022
    ...proof of just one factor is sufficient to support termination on the statutory ground of abuse or neglect. Interest of J.L.D. , 560 S.W.3d 906, 912 (Mo. App. E.D. 2018). "An argument must explain why, in the context of the case, the law supports the claim of reversible error." Washington v.......
  • In re S.R.H.
    • United States
    • Court of Appeal of Missouri (US)
    • September 24, 2019
    ...but "proof of one such factor is sufficient to support termination on the statutory abuse or neglect ground." Interest of J.L.D., 560 S.W.3d 906, 912 (Mo. App. E.D. 2018).With regard to Section 211.447.5(2)(a), the trial court found that Mother’s mental condition, her diagnosis of Factitiou......
  • In re T.M.P.
    • United States
    • Court of Appeal of Missouri (US)
    • April 5, 2022
    ...App. E.D. 2014). Conflicting evidence is reviewed in the light most favorable to the trial court's judgment. Interest of J.L.D., 560 S.W.3d 906, 911 (Mo. App. E.D. 2018). However, the grounds for termination must be supported clear, cogent and convincing evidence, meaning the evidence must ......

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