In re Q.M.B.

• Decision Date: 06 August 2002
• Docket Number: No. WD 60955.,WD 60955.
• Citation: 85 S.W.3d 654
• Parties: In the Interest of Q.M.B. and Q.T.P. S.S. (Adoptive Mother), Respondent, v. C.E.P.J. (Natural Mother), Appellant, A.B. (Putative Father), L.P.H. (Putative Father), and John Doe (Putative Father), Defendants.
• Court: Missouri Court of Appeals

Page 654

85 S.W.3d 654

In the Interest of Q.M.B. and Q.T.P. S.S. (Adoptive Mother), Respondent, v. C.E.P.J. (Natural Mother), Appellant A.B. (Putative Father), L.P.H. (Putative Father), and John Doe (Putative Father), Defendants.

No. WD 60955.

Missouri Court of Appeals, Western District.

August 6, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied October 1, 2002.

Laura Higgins Tyler, Kansas City, for Appellant.

Lori L. Stipp, Kansas City, For Respondent.

Deborah G. Baron, Kansas City, Guardian ad litem.

Before ULRICH, P.J., and SPINDEN and SMITH, JJ.

EDWIN H. SMITH, Judge.

C.E.P.J. (mother) appeals the judgment of the Circuit Court of Jackson County terminating her parental rights to her minor daughters, Q.M.B. and Q.T.P., and approving their adoption by the respondent, S.S. In entering its judgment, the court, pursuant to § 487.030.1,¹ adopted the findings, recommendations, and proposed judgment of the family law commissioner, who heard the case.

The mother raises five points on appeal. In Point I, she claims that the trial court erred in terminating her parental rights to Q.M.B. and Q.T.P. under § 211.447.4(1) for abandonment because the court's requisite statutory findings in support of termination on that basis were not supported by substantial evidence, were against the weight of the evidence, and erroneously applied the law. In Point II, she claims that the trial court erred in terminating her parental rights to Q.M.B. and Q.T.P. under § 211.447.4(2) for abuse and neglect because the court's conclusion in support of termination on that basis, that the mother, "although physically and financially able, repeatedly and continuously failed to provide the children with adequate food, clothing, shelter, education, and other care and control necessary for the children's physical, mental and emotional health and development, financial or otherwise," was not supported by substantial evidence and was against the weight of the evidence. In Point III, she claims that the trial court erred in terminating her parental rights to Q.M.B. and Q.T.P. under § 211.447.4(3) for failure to rectify because the court's requisite statutory findings in support of termination on that basis were against the weight of the evidence and erroneously applied the law. In Point IV, she claims that the trial court erred in terminating her parental rights to Q.M.B. and Q.T.P. as being in their best interests because it erroneously applied the law in that "the trial court can not [sic] reach the issue of best interest unless there is a basis to terminate parental rights and for the aforementioned reasons [as claimed in Points I-III] there was not a basis to terminate the mother's parental rights." In Point V, she claims that "[t]he trial court erred in granting the respondent's petition to adopt because the finding that it is in the best interest of the children that respondent be allowed to adopt is not supported by substantial evidence, it is against the weight of the evidence and it erroneously applies the law."

We affirm in part, and dismiss in part.

Facts

C.E.P.J. is the natural mother of Q.M.B., born April 15, 1998, and Q.T.P., born August 11, 1999. On June 18, 1998, a petition for protective custody of Q.M.B. was filed by the Juvenile Officer of Jackson County, Missouri (JO), in the Circuit Court of Jackson County, Family Court Division. On November 17, 1998, the trial court sustained the petition, finding that Q.M.B. had been abused and neglected, and ordered that she be placed in the custody of her paternal grandmother. On September 9, 1999, the JO filed a petition for protective custody of Q.T.P. On October 28, 1999, the court sustained that petition, finding that Q.T.P. had been abused and neglected, and ordered that she be placed in the custody of the Division of Family Services (DFS). On November 4, 1999, the family court changed Q.M.B.'s custody to the respondent, the child's great aunt. Custody of Q.T.P. was changed to the respondent on February 23, 2000.

On January 17, 2001, the respondent filed a petition for adoption of the children, pursuant to § 453.010, in the family court, including a count to terminate the parental rights of the mother and the putative fathers of the children, as provided in § 211.447.4. The mother filed her answer to the petition on February 26, 2001. On March 22, 2001, the respondent filed a first amended petition, adding an additional putative father as to Q.T.P. In her amended petition, the respondent alleged, as grounds for terminating the parental rights of the mother and putative fathers: abandonment, § 211.447.4(1); abuse and neglect, § 211.447.4(2); and failure to rectify, § 211.447.4(3).

The respondent's petition was heard by Commissioner Geoffrey Allen on September 16, September 20, October 12, October 30, and November 1, 2001. Numerous witnesses testified during the trial, including, among others, the mother, the respondent, and several DFS employees. Commissioner Allen issued his proposed findings, recommendations, and judgment on December 7, 2001. In his findings, the commissioner found that all three grounds alleged by the respondent for terminating the parental rights of the mother and the putative fathers were supported by the evidence presented. On December 13, 2001, the trial court adopted the proposed findings and recommendations of the commissioner and entered its judgment, inter alia, terminating the parental rights of the mother and the putative fathers, and approving the adoption of the children by the respondent.

This appeal follows.

I.

In her first three points, the mother challenges the three statutory grounds found by the trial court for termination of her parental rights. A trial court's judgment terminating parental rights will be affirmed if any statutory ground for termination is proven. In, re N.M.J., 24 S.W.3d 771, 777 (Mo.App.2000). Thus, if the trial court's termination of the mother's parental rights was correct on any one of the three bases found, we would affirm on that basis, requiring us to address the point challenging that basis alone. In that regard, because we find that the trial court's judgment terminating the mother's parental rights was justified on the basis of abuse and neglect, under § 211.447.4(2), Points I and III are moot such that of the first three points, we address Point II alone.

In Point II, the mother claims that the trial court erred in terminating her parental rights to Q.M.B. and Q.T.P. under § 211.447.4(2) for abuse and neglect because the court's conclusion in support of termination on that basis, that the mother, "although physically and financially able, repeatedly and continuously failed to provide the children with adequate food, clothing, shelter, education, and other care and control necessary for the children's physical, mental and emotional health and development, financial or otherwise," was not supported by substantial evidence and was against the weight of the evidence. Specifically, she claims that the evidence was insufficient to support the trial court's finding made in support of that conclusion, that the "mother had financial income of over $2,500.00 per month after receiving pension benefits from her deceased husband."

We are to affirm the termination of parental rights unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. In re J.D., 34 S.W.3d 432, 434 (Mo.App. 2000). Upon review, we will consider the evidence and all reasonable inferences drawn therefrom in the light most favorable to the trial court's judgment and disregard all evidence and inferences to the contrary. Id. "[E]vidence in the record that might support another conclusion does not necessarily establish that the trial court's decision is against the weight of the evidence." In re A.S., 38 S.W.3d 478, 481 (Mo.App.2001) (citation omitted).

The mother's argument in support of her claim in this point consists solely of one paragraph:

The finding that the Mother had financial income of over $2,500.00 per month after receiving pension benefits from her deceased husband who died September 2, 2000, is not supported by substantial evidence and is against the weight of the evidence because it ignores the testimony of the Mother that she was not eligible and did not receive benefits between the time of her husband's death and the birth of her son (Tr. 363). The finding that the lack of visitation and financial support and the token gifts constitute failure to support is against the weight of the evidence because it ignores the testimony of Ms. Iwen that the Mother has offered and stated that if there is anything the children need to please let her know and she will be more than happy to get it for them (Tr. 274-275, 287). Further there is no court order to pay support (Tr. 287).

We first note that the mother's argument fails to cite any authority in support of her claim or reasons for a lack of such citation, as required. Martin v. Morgan, 61 S.W.3d 300, 302 (Mo.App.2001). This alone would be sufficient reason to deny her claim and affirm the trial court's termination on the basis of abuse and neglect. Id. However, even if we were to gratuitously review her claim on the merits, her point must still fail.

In a termination of parental rights case, the petitioner bears the burden of proof. In re A.R., 52 S.W.3d 625, 633 (Mo.App.2001). "`This burden of proof is met if substantial evidence (evidence which, if true, has probative force upon the issues) is clear, cogent and convincing on the issues.'" Id. (citation omitted). "`Clear, cogent and convincing evidence is that which instantly tilts the scales in the affirmative when weighed against opposing evidence.'" Id. (citation omitted). Thus, if the trial court finds that the petitioner has proven by clear, cogent and convincing evidence that one or more of the statutorily approved grounds...