In re S.R.H.

• Decision Date: 24 September 2019
• Docket Number: No. ED 107430,ED 107430
• Citation: 589 S.W.3d 62
• Parties: In the INTEREST OF S.R.H.
• Court: Missouri Court of Appeals

589 S.W.3d 62

In the INTEREST OF S.R.H.

No. ED 107430

Missouri Court of Appeals, Eastern District, DIVISION THREE.

FILED: September 24, 2019

ATTORNEY FOR APPELLANT, Robert W. Bilbrey, P.O. Box 131, Imperial, MO 63052, LAW OFFICE OF ROBERT BILBREY.

ATTORNEY FOR RESPONDENT, Tammy Machelle Steward, attorney for Juvenile Officer, 1101 Weber Road, Suite 101, Farmington, MO 63664, Hardin Thomas Haynes, atty for State of Missouri, St. Francois County Children’s Div., 207 West High Street, Jefferson City, MO 65102, Dawn Elizabeth Blunda, Co-Counsel for Respondent, 6449 Telegraph Road, St. Louis, MO 63129-4933, Brice Sechrest, Guardian Ad Litem for S.R.H., P.O. Box 667, 105 Science Street, Park Hills, MO 63601.

ORDER

Mary K. Hoff, Presiding Judge

On the Court’s own motion, the Per Curiam Order and Memorandum filed in this case on August 20, 2019 is hereby withdrawn and an Opinion is to issue.

SO ORDERED.

OPINION

E.D.H. ("Mother") appeals from the "Judgment and Decree Terminating Parental Rights" ("Judgment") that terminated her parental rights to S.R.H. ("Child") on the grounds of abuse and neglect, under Section 211.447.5(2) RSMo 2000¹ ; failure to rectify conditions, under Section 211.447.5(3); and parental unfitness, under Section 211.447.5(6). We affirm.

Factual and Procedural Background

Child was born in Texas on April 11, 2009. On May 9, 2015, Child was placed under the physical and legal custody of the Missouri Department of Social Services, Children’s Division ("Children’s Division"). Child remained in foster care continuously from May 2015 through January 2018. On August 1, 2017, Child’s father consented to termination of his parental rights, which the trial court approved and accepted on August 15, 2017. Father did not appear at the termination hearing and does not challenge the termination of his parental rights.

Mother has an extensive criminal history dating back to 1987, and an extensive child abuse/neglect history dating back to 2002, involving multiple children and states, including Missouri. Mother’s parental rights have been terminated to five of her six children.

On October 16, 2018, Mother’s parental rights to Child were terminated. She challenges the termination on the grounds there was not clear, cogent and convincing evidence to terminate her parental rights under Section 211.447, and because the Children’s Division failed to make reasonable efforts to reunify parent and child.

We set forth a brief chronological history of the events which brought Child into the custody of the trial court as well as the long procedural history below.

On October 31, 2014, Child came under the jurisdiction of the juvenile division of the trial court when Mother was arrested and charged with assault of Child’s grandmother in Case No. 14SF-JU00181. The trial court found that Mother had abused Child, and that Mother was medically abusing Child by giving her medications that she had not been prescribed. Finally, the trial court found that Child was a victim in Child abuse and neglect cases in California and Texas, and that there was an active Child protective services case open against Mother in Texas for medical neglect. On December 29, 2014, the trial court entered its order of adjudication in case 14SF-JU00181 placing Child in the temporary legal and physical custody of the Children’s Division. On January 12, 2015, the court terminated jurisdiction over Child.

On May 29, 2015, following an allegation that Mother had physical custody of Child contrary to a court order of custody granting sole legal and physical custody to Child’s father where Mother was afforded no visitation, the juvenile office filed its Petition for Protective Custody.

On May 30, 2015, a second juvenile case was opened, Case No. 15SF-JU00080.

On June 4, 2015, the court entered an order and finding of jurisdiction, and at the same time entered a "Social Service Plan" ("Plan") for Mother.

On July 27, 2015, the trial court once again took jurisdiction over Child, finding inter alia , that Mother had provided Child with non-prescribed medications, that Mother had a "very extensive Child Abuse/Neglect history involving the states of Arizona, Texas, Tennessee, California, and Missouri," and that Mother had her parental rights over other children terminated. The court took judicial notice of the files in both abuse and neglect cases.

On January 12, 2018, the juvenile office filed its petition for Termination of Parental Rights, seeking to terminate the parental rights of both Mother and Father to Child.

During the underlying case, it was also discovered that Mother was involved in a murder investigation in Illinois. Mother informed her case worker of this in December 2015. In June 2016, Mother was arrested and incarcerated in Madison County, Illinois awaiting trial on the charge of murder in the first degree. She remained incarcerated from June 2016 until the termination hearing.

On August 30, 2018, the trial court held a hearing regarding Mother’s parental rights. On October 16, 2018, the court entered its Judgment terminating Mother’s parental rights finding that Mother had abused or neglected the Child, under Section 211.447.5(2). The trial court also found grounds to terminate Mother’s parental rights under Section 211.447.5(3) and Section 211.447.5(6). Finally, the trial court found that termination was in Child’s best interests, pursuant to Section 211.447.6. This appeal follows. Additional facts will be included below as we address Mother’s six points on appeal.

Standard of Review

Termination of parental rights is permitted when a statutory ground for termination is supported by clear, cogent, and convincing evidence, and termination is determined to be in the best interests of the child by a preponderance of the evidence. In re K.A.W., 133 S.W.3d 1, 12 (Mo. banc 2004). "[C]lear, cogent, and convincing evidence 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." K.A.W., 133 S.W.3d at 12. In our review, we "defer to the circuit court's ability to judge the credibility of witnesses and will affirm the judgment unless there is no substantial evidence to support it, it is contrary to the evidence, or it erroneously declares or applies the law." Id. at 11. Any conflicting evidence will be viewed in the light most favorable to the judgment of the circuit court. Id. at 12.

Discussion

Mother raises six points on appeal. For ease of discussion, we address related points together.

Abuse and Neglect

In Points I, II, and III, Mother argues that the trial court erred in terminating her parental rights pursuant to Section 211.447.5(2) because the decision was not supported by clear, cogent, and convincing evidence. In all three points, Mother challenges the findings made in subparagraphs (a) through (d) as insufficient in that the trial court relied on an "outdated evaluation" to determine Mother’s conduct at the time of trial and, further, failed to correlate Mother’s past acts and conduct to a potential for future harm or her ability to care for Child prospectively. We disagree.

Section 211.447.5 lists the grounds for termination that may prompt the filing of a petition for termination of parental rights. Subsection (2) states, in relevant part, that in determining whether to terminate parental rights because "[t]he Child has been abused or neglected," the trial court is required to consider and make findings on certain conditions or acts of the parent. Here, Child was adjudicated abused or neglected in 2015; Mother does not dispute that adjudication. In a case of abuse or neglect, Subsection (2) requires the trial court to consider and make findings regarding 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;

(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 development.

Section 211.445.5(2)(a)-(d). These factors are not themselves separate grounds for termination, 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 Factitious Disorder

Imposed on Another (f/k/a Munchausen’s Syndrome by proxy ) ("factitious disorder") was permanent, or such that there is no reasonable likelihood that the condition could be reversed, and that it rendered Mother unable to knowingly provide the Child with necessary care, custody, and control.

In order to find that a mental condition justifies termination of parental rights, the court must analyze three aspects: "(1) documentation—whether the condition is supported by competent evidence; (2) duration—whether the condition is permanent or such that there is no reasonable likelihood that it can be reversed; and (3) severity of effect—whether the condition is so severe as to...