In re T.M.E.

• Decision Date: 23 August 2005
• Docket Number: No. WD 64788.,No. WD 64787.,WD 64787.,WD 64788.
• Parties: In the Interest of T.M.E., Plaintiff; Juvenile Officer, Respondent, Missouri Division of Family Services, Respondent, v. K.L.E. (Mother), Appellant, J.F.E. (Father), Appellant.
• Court: Missouri Supreme Court

169 S.W.3d 581

In the Interest of T.M.E., Plaintiff;

Juvenile Officer, Respondent, Missouri Division of Family Services, Respondent, v. K.L.E. (Mother), Appellant, J.F.E. (Father), Appellant.

No. WD 64787.

No. WD 64788.

Missouri Court of Appeals, Western District.

August 23, 2005.

Mark A. Goodwin, Richmond, for Appellant K.L.E.

James Armin Rust, Richmond, for Appellant J.F.E.

J.D. Gorham, Richmond, attorney and Guardian ad Litem for Plaintiff T.M.E.

James Carey Thompson, Richmond, for Respondent Juvenile Officer.

Gary Lee Gardner, Asst. Attorney General, Jefferson City, for Respondent Missouri Children's Division.

Before VICTOR C. HOWARD, P.J., JAMES M. SMART, JR., and THOMAS H. NEWTON, JJ.

JAMES M. SMART, JR., Judge.

Appellants K.L.E. and J.F.E. appeal the juvenile court's judgment terminating their parental rights to their daughter, T.M.E. They assert various points of error, most of which relate to the sufficiency of the statutorily required findings. We affirm.

Background

T.M.E. (Daughter) was born to K.L.E. (Mother) and J.F.E. (Father) in August 2002. In February 2003, when Daughter was almost six months old, she was admitted to Children's Mercy Hospital, because, among other things, she was having difficulty breathing. Daughter was placed in protective custody with the Division of Family Services (DFS) after doctors discovered multiple fractures throughout her body.

DFS, the Ray County Sheriff's Department, and the State Technical Assistance Team (STAT) began a child abuse investigation. Six months later, Father pleaded guilty to felony child abuse. He later pleaded guilty in another jurisdiction to first-degree assault on Daughter while in that jurisdiction. Father was sentenced to concurrent ten-year prison terms on each conviction. Mother pleaded guilty to first-degree child endangerment for failing to protect Daughter from the abuse. She was sentenced to five years' probation.

Daughter continued in protective custody while DFS worked with Mother on a plan aimed at reunification. The parents originally were permitted weekly visitation with their daughter, but that was terminated following Mother's guilty plea. DFS sent Father notes from support team meetings and copies of treatment plans, but offered him no reunification services after he was incarcerated. About thirteen months after DFS took Daughter into protective custody, the Juvenile Officer filed a petition to terminate both parents' parental rights. A bench trial was held. Both parents were present and represented by counsel.

The court heard evidence from a pediatrician and child abuse expert at Children's Mercy Hospital who examined the child, a child abuse investigator with STAT, DFS employees who worked with the parents on reunification, and Mother's mental health counselor. Mother and Father also testified. The court took judicial notice of the underlying juvenile case record and the parents' criminal cases.

The trial court terminated Father's parental rights based on his felony convictions for inflicting serious bodily injury on the child and the court's own findings of abuse. The court terminated Mother's parental rights based on findings of abuse, neglect, and failure to rectify harmful conditions. The court found that the terminations were in the child's best interests and were "reinforced" by the public policy underlying section 211.038.

Both parents appeal.

Standard of Review

Before terminating parental rights, the trial court must find by clear, cogent, and convincing evidence that one or more grounds for termination exists under subsections 2, 3, or 4 of section 211.447, and that termination is in the child's best interests. § 211.447.5; In re S.M.H., 160 S.W.3d 355, 362 (Mo. banc 2005). Clear, cogent, and convincing evidence is that which instantly tilts the scales in favor of termination when weighed against the evidence in opposition and leaves the fact finder with the abiding conviction that the evidence is true. In the Interest of A.S.W., 137 S.W.3d 448, 453 (Mo. banc 2004). One ground, if properly pleaded and proven, is sufficient to support a judgment for termination of parental rights when termination is in the best interest of the child. S.M.H., 160 S.W.3d at 362.

Whether statutory grounds have been proven is reviewed pursuant to Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), under which we must affirm the judgment unless no substantial evidence supports it, it is contrary to the weight of the evidence, or it erroneously declares or applies the law. In the Interest of P.L.O., 131 S.W.3d 782, 788-89 (Mo. banc 2004). We review the court's best-interest determination for an abuse of discretion. Id. at 789. We defer to the trial court on questions of witness credibility and view conflicting evidence in the light most favorable to the judgment. In the Interest of K.A.W., 133 S.W.3d 1, 11-12 (Mo. banc 2004).

Findings of Abuse and Neglect

The primary reasons for termination as to both Mother and Father related to the physical abuse of the child. There was ample evidence of abuse in the record and the testimony presented at trial. Dr. Michael Moran, a pediatrician and expert on child abuse, testified about his examination of Daughter at Children's Mercy. He discussed the nature and extent of her injuries. The doctor stated that Daughter's breathing difficulties when she was admitted to Children's Mercy raised concerns about a possible brain injury. X-rays revealed numerous fractures of various ages in her head, arms, ribs, and legs. She also had bruising in her mouth. According to Dr. Moran, Daughter's injuries were considered non-accidental and were consistent with acts of child abuse. He discussed the causes of the injuries, some of which he described as "snap-type" fractures. He opined that the fractures in her right forearm were "healing fractures" caused by a "force" coming across the forearm bone. The child had five fractures on the right side and three fractures on the left side of her ribs where the ribs join the sternum. These would have been caused by acute compression of the chest or a blow to the chest. She also had sustained an elongated fracture on the left side of her skull caused by "blunt force trauma." Dr. Moran said Daughter had several fractures near the joints in her arms and legs that were the result of having been shaken violently. Many of Daughter's fractures were older and had gone untreated. She would have been in extreme pain as a result of these injuries. This would have been evident to Mother or anyone who handled her.

STAT investigator Dan Stewart testified about his interviews with Mother and Father. Mother told him that she thought Father might have treated Daughter too roughly. In Mother's written statement, she admitted that the child cried more than usual after being left with Father. Mother told Stewart she had confronted Father more than once, but she never reported any suspicions to any healthcare providers who saw the child prior to DFS intervention. Mother frequently alluded to the possibility of abuse by Father, in her interview, but then consistently backed away from it. For example, Mother stated that Father had compressed the child's chest, but then said she thought it was to get Daughter to breathe.

While Daughter was in DFS custody, Mother and Father both pleaded guilty to felonies associated with her abuse. Father pleaded guilty in Ray County to the class B felony of child abuse, § 568.060. The allegation was that Father committed cruel and inhuman punishment upon Daughter by striking her with his hand and/or shaking her, causing her multiple rib fractures and serious emotional injury. He later pleaded guilty in Jasper County to the class A felony of first-degree assault, § 565.050. The allegation there was that Father caused serious physical injury to Daughter by striking and shaking her. Mother pleaded guilty in Ray County to endangering the welfare of a child in the first-degree, § 568.045, a class D felony. The allegation against Mother was that she created a substantial risk to the life body, and health of Daughter by failing to protect her from acts of physical abuse inflicted by another, by misrepresenting to medical personnel the nature and extent of the child's injuries, and by overmedicating her.

The court terminated Father's parental rights based on his two separate felony convictions for inflicting serious bodily injury on the child. See § 211.447.2(3)(d).¹ The court also based termination on its own finding that Father had committed severe and recurrent acts of physical abuse and repeatedly inflicted serious bodily injury on the child. See § 211.447.4(2)(c).

Section 211.447.4(2) permits the juvenile officer or DFS to file a petition to terminate parental rights when it appears that the child has been abused or neglected. The statute requires the court, in determining whether to terminate under that subdivision, to consider and make findings as to four factors.² The court is required to make findings as to all the factors, but a termination based on abuse may be justified by the existence of only one factor. In the Interest of J.M.N., 134 S.W.3d 58, 68 (Mo.App.2004); In the Interest of A.S.O., 52 S.W.3d 59, 67 (Mo.App.2001).

Here, the court made findings on all four factors with regard to Father. The court found a basis for termination only in paragraph (c), severe and recurrent acts of physical abuse. The court further found that termination was in the child's best interest, in that she should not be returned to Father's care to risk further abuse.

As with Father, the court found sufficient grounds for termination of Mother's parental rights under section 211.447.4(2). The court made the required findings on all the factors and found grounds to terminate Mother's parental rights under paragraphs (c), severe or recurrent acts of physical abuse, and (d), repeated or continuous failure to provide for the child. The court found no grounds...