In the Interest of C.N.W. & K.S.W. v. LaFata

• Court: Missouri Court of Appeals
• Citation: In the Interest of C.N.W. & K.S.W. v. LaFata, 26 S.W.3d 386 (Mo. App. 2000)
• Decision Date: 25 July 2000
• Parties: (Mo.App. E.D. 2000) . In the Interest of C.N.W. and K.S.W., minor children, C.W.B., Appellant, v. Susan LaFata and Missouri Division of Family Services, Respondents Case Number: ED75741 Missouri Court of Appeals Eastern District Handdown Date: 0

26 S.W.3d 386 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

In the Interest of C.N.W. and K.S.W., minor children, C.W.B., Appellant, v. Susan LaFata and Missouri Division of Family Services, Respondents

Case Number: ED75741

Missouri Court of Appeals Eastern District

Handdown Date: 07/25/2000

Appeal From: Circuit Court of St. Louis County, Hon. Melvyn W. Wiesman

Counsel for Appellant: Paul Graham

Counsel for Respondent: Cynthia Harcourt-Hearring

Opinion Summary: C.W.B. ("Mother") appeals the judgments of the Circuit Court of St. Louis County terminating her parental rights to her minor daughters, C.N.W. and K.S.W., and dismissing her Rule 74.06 motion to vacate or set aside the judgment for lack of jurisdiction and failure to state a cognizable claim.

AFFIRMED

Division Five Holds: (1) The trial court did not err in dismissing Mother's motion to vacate or set aside the judgment because Mother failed to allege any competent grounds for relief under Rule 74.06, which does not permit expansion of the reasons for setting aside a judgment beyond those specifically delineated therein. (2) The trial court did not err in terminating Mother's parental rights because its findings were supported by clear, cogent and convincing evidence in the record.

Opinion Author: Lawrence G. Crahan, Judge

Opinion Vote: AFFIRMED. Russell, C.J., Concurs and Blackmar, Sr. J., Concurs in Result Only in Separate Opinion

Opinion:

C.W.B. ("Mother") appeals the judgments of the Circuit Court of St. Louis County terminating her parental rights to her minor daughters, C.N.W. and K.S.W., and dismissing her Rule 74.06 motion to vacate the judgment for lack of jurisdiction and failure to state a cognizable claim. The cases were consolidated for purposes of appeal. We affirm.

This case involves two minor children born to Mother: C.N.W., born January 15, 1985, and K.S.W., born July 19, 1986. The children came under the jurisdiction of the court on July 24, 1990, when it adjudicated them as having been abused while in Mother's custody, and have remained in the court's jurisdiction since that time. From 1990 to 1994, legal custody of the children was given to the Missouri Division of Family Services ("DFS"). Although physical custody of the children was given to Mother, the children lived with their maternal grandparents during much of this time due to Mother's recurrent drug abuse problem requiring placement in drug treatment centers. In 1994, the grandparents contacted DFS and requested that both children be placed in foster care because they were no longer able to care for them. DFS placed both children in the home of Teresa Anderson ("foster mother") where they have remained until the present time.¹

On October 28, 1998, the juvenile officer filed petitions to terminate Mother's parental rights with respect to each child.² A consolidated hearing on the petitions was held three months later, at which time Mother was present and represented by appointed counsel.

Judy Rayborn ("Rayborn"), an employee of the Department of Mental Health, Division of Mental Retardation, testified on behalf of the juvenile officer. She stated that Mother had been diagnosed with mild mental retardation, but compared with other mentally retarded individuals, was very high functioning. Rayborn had worked with Mother for the two years preceding the termination hearing on budgeting and housing issues and had noticed an improvement in her ability to care for herself since March or April of 1998. Rayborn testified that Mother had recently obtained housing on her own and had met her housing and budgeting goals for 1998.

Rayborn testified that Mother received $494.00 per month from social security and additional money from other employment sources. Rayborn testified that she paid Mother's utility bills out of the social security money, and then sent Mother the remainder to use at her discretion for groceries and other expenses. Rayborn stated that although Mother had requested occasional money for Christmas and birthday presents for the children, she did not request that any money be specifically budgeted for their support. Further, Rayborn could not verify that Mother had sent any money to the children to help with their support out of her expense allowance. Rayborn testified that although she had discussed with Mother the possibility of obtaining housing large enough to accommodate the children and had offered to help in that regard, Mother had not budgeted any money or taken any action to acquire such housing as of the date of the termination hearing.

Marilyn Thompson ("Thompson"), a psychotherapist and licensed clinical social worker, testified that both children had been referred to her by DFS for counseling in August of 1998. She stated that her therapy sessions with the children and foster mother focused on self-esteem and adoption issues. She was aware that both foster mother and the children's cousin, Charlotte Lawton ("Lawton"), wished to adopt the children if Mother's parental rights were terminated.

Thompson testified that although C.N.W. felt a sense of loyalty to her biological family, she did not want to live with Mother because she was concerned whether Mother "could provide safety" for her. Thompson testified that C.N.W. was aware that Lawton wanted to adopt her and that she was very angry about this. C.N.W. was afraid that if she went to live with Lawton, Lawton would give her back to Mother. Thompson testified that K.S.W. also expressed concern that she might be abused again if she were to live with Mother. Thompson stated that both children loved and had developed a strong bond with their foster family and wanted to be adopted by foster mother.

Thompson testified that although the children were comfortable around Mother and desired to maintain some contact with her, neither had shown a positive emotional bond with her. She stated that the children were "on an emotional roller coaster" and had been exhibiting signs of depression due to fear of leaving foster mother. Thompson opined that it was in the best interests of the children that foster mother be allowed to adopt them.

Foster mother also testified at the hearing. She testified that both children had lived with her for the past four years and that she desired to adopt them. She testified that during the last four years, Mother only called two or three times to talk to the children. Foster mother stated that she did not restrict the children from calling Mother, but that they had only desired to call her one time.

Willa Hubbard ("Hubbard"), a DFS caseworker, testified that she had been assigned to the children's case since August of 1995. She testified that the children were originally referred to DFS pursuant to two hotline reports in May of 1990 concerning bruising on K.S.W.'s face and neck, and belt buckle marks on her back, inflicted by a babysitter frequently used by Mother and known only as "Pookie." She disclosed that there had also been a hotline report of abuse occurring in 1987, but that the perpetrator at that time was unknown. Hubbard testified that both children had been in the jurisdiction of the juvenile court and custody of DFS continuously since 1990, and in foster care since 1994, due to Mother's severe drug abuse problems.

Hubbard detailed for the court Mother's attendance and involvement in drug treatment programs. From 1990 to early 1995, Mother entered and failed drug treatment approximately fourteen times. Between May of 1995 and the date of the termination hearing, Mother had participated in six or seven drug treatment programs. Hubbard acknowledged that in the five months preceding the hearing, Mother had shown some improvement, but opined that this was characteristic of Mother's past history. She stated that Mother consistently showed a pattern of improvement before foster care review hearings followed by a relapse into drug use. Although she stated that Mother appeared to be doing well in her current aftercare program, Hubbard was unable to verify that Mother had been drug free for the past six months because her current program did not require drug screening tests.

Hubbard testified that Mother and DFS had entered into written service agreements each year, beginning in 1990, to assist Mother with the reunification of her children. Hubbard stated that she and Mother went over every aspect of the service agreements and although Mother understood what was expected of her, she consistently failed to adhere to the requirements. Specifically, Mother failed to remain drug free, did not comply with the housing requirements prior to 1998, and failed to keep in contact with DFS on several occasions. Mother also failed to visit her children on a regular basis as required in the agreements. Hubbard testified that Mother did not have a documented visit with her children between December of 1996 and September of 1997. She also failed to call or visit her children between February and June of 1998. Further, Mother had only visited the children five times between August of 1998 and the date of the termination hearing in January of 1999. Although Mother claimed to have visited the children during some of these periods at the grandparents' home, Hubbard had no documentation of such visits and was unable to verify Mother's assertions to the court.

Hubbard testified that Mother had provided no financial support for the children since they had been placed in foster care, although she had periodically provided clothing, necessities, and birthday and Christmas presents. Hubbard stated that the children seemed to enjoy seeing their mother, but that there was no parent/child relationship between them. Mother also failed to demonstrate any control or discipline over the children and the emotional ties between them were "more of a friend relationship than mother and children." Hubbard did not think that M...