In the Interest of A.H. v. R.H., B.K.
| Decision Date | 11 January 2000 |
| Citation | 9 S.W.3d 56 |
| Parties | (Mo.App. W.D. 2000) . In the Interest of: A.H., Plaintiff, Juvenile Officer, Respondent, v. R.H., Appellant, B.K., Defendant. WD57073 Missouri Court of Appeals Western District Handdown Date: 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Jackson County, Hon. Ronald R. Holliger
Counsel for Appellant: Johanna Faith Telke
Counsel for Respondent: Mary Kathryn O'Malley, Dale Nathan Godfrey and Kyla Jean Grove
Opinion Summary:
R.H. (Mother) appeals the judgment of the trial court terminating her parental rights in her minor daughter, A.H. She contends that the trial court's determinations that the child was abused or neglected, section 211.447.4(2), RSMo Cum. Supp. 1998, that Mother was unfit to be a party to the parent and child relationship, section 211.447.4(6), RSMo Cum. Supp. 1998, and that termination of her parental rights was in the best interest of the child were against the weight of the evidence.
AFFIRMED.
Division IV holds: Where evidence presented at trial revealed that since the birth of A.H. Mother's housing situation had been extremely unstable, that Mother provided no financial support to A.H. while she was in the custody of the DFS, that any emotional bond between Mother and the infant was insignificant under the circumstances, and that Mother's overall psychological evaluation was poor, the trial court's finding that A.H. had been abused or neglected under section 211.447.4(2) was not against the weight of the evidence within the record, and Mother failed to overcome the statutory presumption of unfitness under section 211.447.4(6).
Opinion Vote: The judgment of the trial court is affirmed. Breckenridge, C.J., P.J., and Smith, J., concur.
R.H. (Mother) appeals the judgment of the trial court terminating her parental rights in her minor daughter, A.H. She contends that the trial court's determinations that the child was abused or neglected, section 211.447.4(2)1, that Mother was unfit to be a party to the parent and child relationship, section 211.447.4(6), and that termination of her parental rights was in the best interest of the child were against the weight of the evidence. The judgment of the trial court is affirmed. Approximately two years prior to the judgment terminating Mother's parental rights in A.H. in this case, Mother's parental rights in another daughter, B.H., were terminated. On May 1, 1997, judgment was entered in the Circuit Court of Clay County terminating the parental rights of Mother in B.H., born August 8, 1994. The termination of Mother's parental rights in B.H. was based on two statutory grounds: (1) that the child had been adjudicated to have been neglected, section 211.447.2(2), RSMo 1994; and (2) that the child had been under the jurisdiction of the juvenile court for a period of one year, and conditions which led to the assumption of jurisdiction still persist, section 211.447.2(3), RSMo 1994. Specifically, the court found (1) that since August 24, 1994, Mother has failed to provide B.H. with proper care and supervision; (2) that since August 24, 1994, social services agencies and programs in Clay County, Missouri, and Wyandotte County, Kansas, have offered to Mother extensive assistance, education and support, but Mother has been resistive and uncooperative to the offered services and, in fact, threatened to flee with the child to avoid services; (3) that on September 23, 1994, Mother moved from a transitional living program and placed the child in the care of a man who has an extensive and unfavorable history with the Missouri Division of Family Services (DFS) and juvenile authorities; (4) that since jurisdiction was taken over the child, the Clay County DFS has made diligent efforts to aid Mother to adjust her circumstances and conduct to provide a proper home for the child, but Mother has been unwilling or unable to sufficiently comply with the terms of the plan so as to provide the child with a safe, stable home; and (5) that it is unlikely that additional services would bring about lasting parental adjustment to enable return of the child to Mother within an ascertainable period of time.
During the same time, Mother gave birth to another child, M.H., a son. Due to Mother's homelessness, the Circuit Court of Clay County, assumed jurisdiction of M.H., and placed the child in the custody of his father.
A.H., the child at issue in this case, was born to Mother on April 23, 1998. The day after her birth, A.H. was removed from Mother's custody and placed in the care and custody of the DFS. A.H. entered the jurisdiction of the family court on July 14, 1998, pursuant to the filing by the juvenile officer of a second amended petition. The petition alleged that A.H. was without proper care, custody, and support in that Mother's housing situation was unstable. The petition further alleged that due to Mother's homelessness, Mother had lost custody of A.H.'s half-brother, M.H., and her parental rights in A.H.'s half-sister, B.H., had been terminated.
A petition for termination of parental rights in A.H. was filed by the juvenile officer on August 5, 1998, seeking to terminate the parental rights of B.K., A.H.'s father, and Mother. Following a hearing on the petition, the trial court entered its judgment terminating the parental rights of B.K.2 and Mother in A.H. on February 16, 1999. It found that A.H. had been abused or neglected pursuant to section 211.447.4(2) in that Mother failed to provide for the child's physical, mental, and emotional needs by not providing necessities, financial or otherwise, to support the child. The trial court also found that Mother was an unfit parent as defined by section 211.447.4(6) in that since the child's birth, Mother had not had stable housing and Mother's parental rights in B.K. had been terminated within the past three years. This appeal by Mother followed.
A trial court's decision to terminate parental rights will be affirmed on appeal unless the record contains no substantial evidence to support the decision, the decision is against the weight of the evidence, or the trial court erroneously declares or applies the law. In Interest of R.K., 982 S.W.2d 803, 805 (Mo. App. W.D. 1998). An appellate court will reverse the judgment of a trial court terminating the parental rights of a party only when it firmly believes that the judgment is wrong. Id. In reviewing a trial court's decision, an appellate court views the evidence and its reasonable inferences in a light most favorable to the decision. Id. An appellate court also defers to a trial court's ability to determine the witnesses' credibility and to choose between conflicting evidence. Id.
A trial court may terminate parental rights to a child where it finds that the termination is in the best interest of the child and where it appears by clear, cogent and convincing evidence that grounds exist for the termination as provided by sections 2,3, or 4 of section 211.447. Section 211.447.5. "Clear, cogent and convincing evidence in an action for termination of parental rights is evidence that 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." R.K., 982 S.W.2d at 806 (quoting In Interest of W.S.M., 845 S.W.2d 147, 150 (Mo. App. W.D. 1993)).
In this case, the trial court terminated the parental rights of Mother in A.H. based on two statutory grounds, sections 211.447.4(2) and 211.447.4(6). Section 211.447.4(2) provides for termination of parental rights if the child has been abused or neglected. The statute provides in pertinent part:
4. The juvenile officer or the division may file a petition to terminate the parental rights of the child's parent when it appears that one or more of the following grounds for termination exist:
(2) The child has been abused or neglected. In determining whether to terminate parental rights pursuant to this subdivision, the court shall consider and make findings on the following conditions or acts of the parent:
(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.
Pursuant to section 211.447.4(2), the trial court found in its judgment that Mother "failed to provide for the child's physical, mental, and emotional needs by not providing necessities, financial or otherwise, to support the child." Mother argues on appeal, however, that the trial court's finding was against the weight of the evidence. Mother contends that the record showed that she could maintain a stable home for A.H. and that she provided financial support "as she was able."3 Mother also argues that the evidence demonstrated that she had emotional ties with A.H. arising over regular visitation and that she exhibited strong interest and commitment to A.H.4
At the hearing on the petition for termination of parental rights in January 1999, Mother testified that she had been at her current address for the last eight months. Other evidence in this case, however, showed that Mother was homeless when A.H. was born in April 1998. After A.H. was removed from Mother, Mother's housing situation remained extremely unstable. In June 1998, Mother lived with B.K., A.H.'s father. In August 1998, she lived with another man, L.H. The same month, Mother tested positive for marijuana use and was admitted to the North Star Program, a drug rehabilitation program. Mother missed several sessions at North Star and
was, therefore, placed in its transitional living program in September 1998. Mother was discharged from this program due to noncompliance on ...
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