In the Interest Of: K.M.W. v. B.D.W.

• Decision Date: 01 June 2011
• Docket Number: No. SD 30885.,SD 30885.
• Citation: 342 S.W.3d 353
• Parties: In the Interest of: K.M.W., Minor,Greene County Juvenile Office, Petitioner–Respondent,v.B.D.W., Natural Father, Respondent–Appellant.
• Court: Missouri Court of Appeals

342 S.W.3d 353

In the Interest of: K.M.W., Minor,Greene County Juvenile Office, Petitioner–Respondent,

v.B.D.W., Natural Father, Respondent–Appellant.

No. SD 30885.

Missouri Court of Appeals, Southern District, Division One.

June 1, 2011.

M. Elise Branyan Barker, Springfield, MO, for Appellant.Bill Prince, Springfield, MO, for Respondent.DON E. BURRELL, Judge.

B.D.W. (“Father”), the biological father of K.M.W. (“Child”), appeals the portions of a judgment that terminated his parental rights to and over Child.¹ The judge of the juvenile division of the circuit court (“the trial court”) found that Respondent had proven by clear, cogent and convincing evidence the following grounds for termination: 1) abandonment, see section 211.447.5(1)(b); abuse/neglect, see section 211.447.5(2); and failure to rectify, see section 211.447.5(3).²

We must affirm the judgment if any one of these three statutory grounds was sufficiently proven and the trial court did not abuse its discretion in determining that termination was in Child's best interest. Section 211.447.5; see In re A.M.C., 87 S.W.3d 917, 923 (Mo.App. S.D.2002) (if evidence supporting one ground is sufficient to terminate parental rights, it is unnecessary to address challenges to other grounds).

Liberally construing Father's three points of alleged error, he asserts that: none of the trial court's findings were supported by sufficient evidence or they were against the weight of the evidence; and the trial court abused its discretion in finding that termination was in Child's best interest.³ We disagree and affirm the judgment insofar as it terminates Father's parental rights.

Facts and Procedural Background⁴

Child was born in August 2008, after Mother was transported to the hospital from the county jail. Mother was in custody awaiting trial on charges of first-degree robbery and armed criminal action. The trial court took judicial notice of criminal files evidencing Mother's prior convictions for resisting arrest, possession of drug paraphernalia, and third-degree assault. No father was listed on Child's birth certificate, and Father had not claimed parentage of Child by providing his name to the Putative Father Registry. Mother named Father as Child's father, and said that he was also incarcerated. Father later agreed to submit to DNA testing that confirmed Father's paternity. Because Mother had made no provision for Child's care, Child was taken into protective custody shortly after her birth.

A day-or-two after Child was born, Penny Kreitzer, an alternative care caseworker for the Children's Division of the Missouri Department of Social Services (the “Children's Division”), met with Father at the Greene County jail. Father told Kreitzer that he and Mother were both in jail on first-degree robbery and armed criminal action charges. Father also told Kreitzer that he “wanted to be involved in [Child]'s life.” Kreitzer testified that, even though Child was an infant, Father was expected to have contact with Child by sending her cards or letters. Father sent no cards or letters while Kreitzer had the case.

Magevney Strickland took Kreitzer's place as the alternative care caseworker in October 2008. As she was preparing to move away from the area, her deposition testimony was taken in January 2010 and later admitted as evidence at trial. Father asked Strickland if he could have visits with Child. Strickland told him that he could not have visits because “the team did not agree with taking [Child] to the jail to see him.” Strickland also testified that “to [her] knowledge” “the team's” decision would not have been any different if Father had asked again for a visit and that was “made pretty clear to [Father].” The record is devoid of any evidence that Father made any other request to be allowed to see Child, either of the trial court or the Children's Division.

Father sent a letter to Child in August 2009, and Strickland testified that the letter was appropriate. Due to Child's age, Strickland kept the letter in her file for potential future use. Father also sent a book that he made at the jail to Child as a Christmas present in 2009. Strickland testified that other than the book, Father provided no financial support, in-kind items, or other gifts to Child during her tenure on the case. Although Father was encouraged to send additional letters to Child, he never did so. Father also did not provide any names or contact information when Strickland asked Father for information about his family members. Strickland testified that based on her understanding of Father's situation and his lack of plans as of January 2010 for meeting his housing and other needs when he was eventually released from custody, she did not believe there was any likelihood that Father would be able to care for Child in the foreseeable future.

Dee Stephenson became the caseworker in May 2010.⁵ By that time, Father had entered a guilty plea to the lesser-included crime of robbery in the second degree, a class B felony. Father received a 10–year sentence and was transported to the Missouri Department of Corrections (“DOC”) to serve it. The trial court took judicial notice of the criminal file that documented Father's convictions for robbery and armed criminal action.⁶ At the time of trial, Father had been in DOC for approximately six months. Prior to that, he had been in the Greene County jail for approximately two-and-a-half years. Child has never seen Father and does not know who he is.

Stephenson recalled that she found some drawings and a card from Father to Child in the case file when she assumed the case, and she sent them to Child's foster parents. Stephenson also testified that Father had signed Child up to receive a learning newsletter available through DOC, and one came to Stephenson just before the termination trial. Father took advantage of multiple classes and programs available to him at the Greene County jail,⁷ requested photos of Child (which were provided to him), and maintained at least “minimal contact” with his caseworkers.

Father was present at trial and testified on his own behalf. Father testified that he had received money while in DOC from both his mother and a girlfriend. Father said that he did not provide Child with any financial support out of those funds because $68 went toward a required victim-compensation payment. Father said he did arrange for a free initial issue or lesson of a newsletter about learning to be sent to Child. Father testified that he “should be out [of DOC] within the next year and half [sic]. That's where my percentage is at.” Father believed he would serve “either 36 or 40 percent” of his sentence before he could be paroled. Father acknowledged that he had never seen Child and that under a “best case scenario” she would be three years old when he was released from DOC. Counsel for Respondent then asked Father the following questions and received the following responses:

Q. And you think it's fair that [Child] wait around?

A. Yes, I do.

Q. Why is that?

A. With her sisters and brothers, so she can go onto [sic] college, just like her sisters and brothers.[ ⁸]

Father said he planned on moving back to Springfield when he was released from DOC but would then move to Kansas City, where his brother “has a couple [of] businesses that he wants me to start with him[.]” Despite the preliminary nature of the brother's business plans, Father believed that his brother already had “a place and job situated for [Father].” Father also testified that he had “a stable place” for Child with a girlfriend who was helping him while he was incarcerated. Counsel for Respondent asked Father, “[Child] doesn't know [the girlfriend] from anybody, does she?” Father's response was, “[Child] don't know nobody. She's been in the foster home.” ⁹ Child has been in a stable foster placement since August 2009, and that family is willing to provide permanency for her.

Analysis

We will affirm the trial court's termination 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 re P.L.O., 131 S.W.3d 782, 789 (Mo. banc 2004). Missouri statutes “provide the various grounds for a termination of parental rights. A trial court must find the existence of at least one ground and that the termination of parental rights is in the child's best interests.” In re K.A.W., 133 S.W.3d 1, 9 (Mo. banc 2004). We “must review whether the grounds for termination were supported by ‘clear, cogent and convincing evidence.’ ” Id. at 12 (quoting section 211.447.5, now renumbered 211.447.6).

In contrast to the high level of proof required to establish a statutory ground for termination, the trial court's best-interest determination is only required to be supported by a preponderance of the evidence. In re D.M.B., 178 S.W.3d 683, 689 (Mo.App. S.D.2005). “We review this finding under an abuse of discretion standard.” Id. at 689–90. The trial court's discretion is abused “when it is so ‘clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.’ ” In re E.D.M., 126 S.W.3d 488, 497 (Mo.App. W.D.2004) (quoting In re M.O., 70 S.W.3d 579, 585 (Mo.App. W.D.2002)). The determination of what is in a child's best interest is an ultimate conclusion for the trial court based upon the totality of the circumstances. In re D.L.W., 133 S.W.3d 582, 585 (Mo.App. S.D.2004).

We defer to the trial court's determinations of witness credibility, A.S.W., 137 S.W.3d at 452, and it is “free to believe all, part, or none of the witnesses' testimony.” In re B.C.K., 103 S.W.3d 319, 322 (Mo.App. S.D.2003). In deference to its role as the fact-finder, conflicting evidence is viewed in the light most favorable to the trial court's determination. In re CAM., 282 S.W.3d 398, 405 (Mo.App. S.D.2009). But “[s]...