In re W.J.S.M., No. ED 88904.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Roy L. Richter
• Citation: 231 S.W.3d 278
• Parties: In re The Interest of W.J.S.M. A Minor Child Kathryn Herman Juvenile Officer, Respondent, v. M.H., The Child's Natural Mother, Appellant.
• Decision Date: 10 July 2007
• Docket Number: No. ED 88904.

231 S.W.3d 278 In re The Interest of W.J.S.M. A Minor Child Kathryn Herman Juvenile Officer, Respondent,
v.
M.H., The Child's Natural Mother, Appellant. No. ED 88904. Missouri Court of Appeals, Eastern District, Division Four. July 10, 2007. Motion for Rehearing and/or Transfer to Supreme Court Denied August 15, 2007. Application for Transfer Denied September 25, 2007.

[231 S.W.3d 280]

Mary D. Fox, St. Louis, MO, for Appellant Mother.

Mary Davidson, St. Louis, MO, Guardian Ad Litem for Mother.

Loretta L. Wofford, St. Louis, MO, for Respondent.

ROY L. RICHTER, Presiding Judge.

Appellant ("Mother") appeals the judgment terminating her parental rights to W.J.S.M. ("Child"). Finding no error, we affirm.

I. BACKGROUND

Sufficiency of the evidence is not disputed. A brief discussion of the facts is required.

Mother gave birth to Child on November 1, 2004. Within days of Child's birth, the Juvenile Officer filed a Petition requesting the Court to assume jurisdiction over Child. In its findings and order, the Court noted that four of Mother's five children were in the custody of the State and that Mother's rights to three children were earlier terminated involuntarily.¹ Having suffered respiratory distress soon after birth, Child was intubated. Mother responded by asking a nurse "when is the tube coming out and when is she coming home?" Mother then called the nurse a "bitch" and indicated that she would remove Child's breathing tube herself. The court further found that Mother admitted she is schizophrenic. Child has at no time resided with mother.²

Mother's attorney was initially appointed both as attorney for Mother and Mother's Guardian Ad Litem ("GAL"). The Court later appointed a separate attorney as Mother's GAL.

Mother's attorney filed a verified Motion for Continuance of the dispositional hearing on the termination petition, asserting that Mother was hospitalized for a competency examination to determine if Mother

231 S.W.3d 281

was competent to proceed with a hearing on a probation revocation in an unrelated criminal matter. This Motion further alleged that counsel was not able to meet privately with Mother due to safety concerns, and that Mother thought she was being held hostage by the secret service.

Mother's attorney filed a Request for Competency Hearing for Mother, in which the GAL joined. The Motion requested a determination of Mother's ability to understand the proceedings and assist counsel, and alleged that Mother was unable to supply information pertinent to the issues in dispute and unable to make decisions as to how to proceed. Attached to the Motion was a report from an expert which opined that Mother "is not competent to proceed" and concluded, "she is not capable of working with her attorney and is not able to assist her attorney in her defense." The Motion was denied.

Mother's attorney filed a Petition for Writ of Habeas Corpus ad Testificundum (sic) requesting that Mother be brought from the St. Louis Psychiatric Rehabilitation Center for the trial. A hearing was held on the Petition for Writ of Habeas Corpus ad Testificandum and the Court denied the Petition. At the hearing, Mother's GAL opposed the Petition for Writ of Habeas Corpus ad Testificandum, stating that it was not in Mother's best interest to be present in Court at the termination hearing. The GAL described Mother's mental condition as "actively psychotic" and characterized her presence at Court as requiring that she be "strapped to a gurney" due to her violent outbursts. Upon denial of the Petition for Writ of Habeas Corpus ad Testificandum, Mother's attorney orally requested that the Court continue the termination hearing based on the fact that Mother would not be present at the hearing without issuance of the Writ. The Court denied the oral request for a continuance, at which time Mother's attorney filed a written request for a continuance, which the Court denied.

Mother's attorney then filed a Petition for Writ of Prohibition in this Court. The Writ sought to prohibit the Juvenile Court from proceeding to a hearing on the Petition to Terminate Parental Rights unless the Writ of Habeas Corpus ad Testificandum was granted so Mother could be present at the hearing. This Court denied the Petition for Writ of Prohibition. Mother's attorney then filed a Writ of Prohibition in the Missouri Supreme Court which was denied.

Mother's attorney filed a Motion to Reconsider Mother's Request for a Competency Hearing. Additionally, Mother's attorney filed another Petition for Writ of Habeas Corpus ad Testificandum. Both Mother's motion and petition were introduced prior to the start of the termination hearing and both were denied. After receiving evidence, the Court terminated Mother's parental rights to Child, finding Mother suffers from a permanent mental condition that renders her unable to knowingly provide care, custody and control for the Child.

II. DISCUSSION

Mother raises two points on appeal.³ Mother's first point alleges error in the trial court's refusal to have her physically brought to the courtroom for the hearing. Mother's second point alleges that since she was incompetent to proceed to trial or provide assistance to her attorney, counsel was thereby ineffective.

We affirm the judgment of the juvenile court unless it is not supported by the evidence, it is against the weight of the

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evidence, or it erroneously declares or applies the law. Anderson v. Jackson, 181 S.W.3d 172, 176 (Mo.App. S.D.2005) (citing Suffian v. Usher, 19 S.W.3d 130, 135-36 (Mo. banc 2000)). In custody proceedings, the welfare of the child is the primary and overriding consideration. Id. at 175. The rights and claims of the natural parent must be of secondary importance. Id. We defer to the findings of the trial court unless they evidence an abuse of discretion. Id.

Mother's first point alleges the trial court erred by denying Mother's Petition for a Writ of Habeas Corpus ad Testificandum denying Mother's attorney's request to have Mother attend the hearing in person or by alternative means and denying Mother's attorney's request for a continuance...