Y.M.H., In Interest of, WD
| Decision Date | 22 October 1991 |
| Docket Number | No. WD,WD |
| Citation | 817 S.W.2d 279 |
| Parties | In the Interest of Y.M.H., Minor. Tom HOOVER, Juvenile Officer, Respondent, v. Y.M.H. (Natural Mother), Appellant. 43816. |
| Court | Missouri Court of Appeals |
Elizabeth Stitt, Legal Aid of Western Missouri, St. Joseph, for appellant.
James G. Spencer, Sullivan County Prosecuting Atty., Milan, for respondent.
Before FENNER, P.J., and LOWENSTEIN and ULRICH, JJ.
Y.M.H. (mother) seeks a reversal of the trial court's judgment terminating her parental rights in her minor daughter, Y.M.H. 1 On appeal, the mother contends that the trial court erred in determining that she abandoned Y.M.H. pursuant to § 211.447, RSMo 1990. The trial court's judgment is affirmed.
The mother contends on appeal 2 that the trial court erred by terminating her parental rights to Y.M.H. because (I) there was no clear, cogent, and convincing evidence to prove that one or more of the statutory grounds for termination of her parental rights, as required by § 211.447, were present; (II) there was no clear, cogent, and convincing evidence to prove that the Sullivan County Division of Family Services had used reasonable efforts to provide services to the mother in an effort to reunite the child with the mother; (III) the mother proved she had repented for any prior abandonment; and (IV) the trial court's finding that the termination of the mother's parental rights is in the best interest of Y.M.H. is not based on clear and convincing evidence, and is against the weight of the evidence.
Y.M.H. was born on June 8, 1987, at Boone County Hospital, Columbia, Missouri. 3 Y.M.H., her mother and her father, A.L.H., 4 were living in North Carolina when the Department of Social Services (DSS) became involved. DSS received complaints on May 17, 1988, that Y.M.H. was being neglected and abused. The reports included information that Y.M.H. was being fed alcoholic beverages, alcohol abusers and criminals were caring for and residing with Y.M.H., the family had no stable source of income, and the mother was being assaulted by A.L.H. DSS provided child protective services as a result of these complaints. Subsequently, the mother and Y.M.H. returned to Green Castle, Missouri, in August of 1988, to the home of the maternal grandmother and M.T., Y.M.H.'s great aunt.
In September 1988, the mother returned to North Carolina for approximately three weeks. During this time, the great aunt, M.T., took care of, and supported, Y.M.H. In fact, M.T. has provided the primary support and care for Y.M.H. since she was brought back to Missouri. The mother married Clarence Powell on October 10, 1988, shortly after returning to Missouri. Throughout this marriage, M.T. continued to provide the majority of care for Y.M.H. Y.M.H. would stay in a mobile home with M.T., M.T.'s mother, and M.T.'s brother, while the mother and Mr. Powell occupied a house situated on the same property as the mobile home. This arrangement continued from August 1988 to March 1989, with the mother spending very little time with Y.M.H.
In March of 1989, the mother continued her nomadic lifestyle, this time she attended a truck driving school somewhere near Kansas City, Missouri. She was to have been gone for only two weeks, but M.T. did not hear from the mother until the latter part of April 1989. The mother called and said she was on a truck leaving for Mobile, Alabama. However, the mother failed to arrange any permanent plans for taking care of Y.M.H. She simply left Y.M.H. with M.T. From the time the mother left in March until mid-May 1989, the mother contacted M.T. and Y.M.H. with a few, short telephone calls and a letter.
The mother did not see Y.M.H. until May 1989 when she took her daughter to Camp Lake Westside in Bourbon, Missouri, where she had been living and working. At the end of May, M.T. received a telephone call from the mother's employer, who expressed concern about Y.M.H. The mother and Y.M.H. had not been seen for a period of time. Despite several attempts, M.T. was unable to locate either the mother or Y.M.H. from mid-May until August 1989. On August 15, 1989, M.T. received a telephone call, around midnight, from a Mr. Brust in Steelville, Missouri, informing her that the mother was in jail for passing bad checks. M.T. was able to contact a sheriff's deputy in Steelville, who told her of the situation and arranged for M.T. to obtain Y.M.H. the next morning. Steelville is about a five-hour drive from Green Castle.
M.T. was able to get Y.M.H. in Steelville the next day. M.T. conversed with the mother; however, the mother did not make any arrangements with M.T. for the continuing support and care of Y.M.H. A few days later, the mother called M.T. to inform her that she had been released from jail. Again, the mother never discussed the care or well-being of Y.M.H., nor did she make any provision for the support and care of Y.M.H. M.T. contacted the Sullivan County Division of Family Services (DFS), believing Y.M.H.'s well-being was in jeopardy. The Juvenile Officer filed a report with the Sullivan County juvenile court, and an order was entered by that court on August 15, 1989. The court received the report which stated that Y.M.H. was suffering from lack of proper care and neglect and was in need of immediate treatment. The court, based upon the report, placed custody of Y.M.H. with M.T. under the supervision of DFS.
A hearing to determine if the court had jurisdiction over Y.M.H. was set for August 28, but the mother could not be located. Both the mother and father of Y.M.H. appeared for the September 6th hearing, but neither the father nor Y.M.H. had legal counsel present. The court granted a continuance, allowing them time to retain attorneys. At the next hearing, on November 1, all parties were present except the mother. The court rescheduled the matter for November 21, 1989. Again, the mother failed to appear at the November 21st hearing. The court, nonetheless, proceeded with the hearing to determine whether the court had proper jurisdiction over the juvenile. After hearing the testimony of several witnesses, the court found that Y.M.H. had been neglected by both parents. The court further found that both of the child's parents failed to provide care and support for Y.M.H. The court recognized that but for M.T., Y.M.H. would have had no one to care for her. Additionally, the trial court determined that DFS could not have reasonably prevented the removal of Y.M.H. from her parent's home. The court accordingly found that it had jurisdiction over Y.M.H. and made her a ward of the court, thereby transferring the child's custody to DFS for temporary placement in M.T.'s home.
A hearing was held on March 13, 1990, to determine if Y.M.H. should remain a ward of the court. Even though the mother was notified of the proceeding, she again was not in attendance. After hearing the evidence presented, the trial court found that Y.M.H. continued to be in need of care and supervision, which were not being provided to her by her parents. The court ordered Y.M.H. to remain in the home of M.T., under the supervision of the court and DFS. The court recognized that DFS had made reasonable efforts to return the child to her home. However, DFS received no cooperation from the parents. The court, therefore, ordered the Juvenile Officer to file a petition for termination of parental rights, to be heard on May 16, 1990.
The mother attended the May 16th hearing. However, she did not have legal representation, although it was made available to her. The court granted yet another continuance, rescheduling the termination hearing for June 14, 1990.
Finally, on June 14, the court was able to proceed with the termination hearing. The court received substantial evidence and listened to the testimony of numerous witnesses. The court received additional evidence on July 3, 1990. After taking the case under advisement, the court, on August 3, 1990, terminated the parental rights of both the mother and father. The court found clear, cogent, and convincing evidence was presented that the father had abandoned Y.M.H., pursuant to § 211.447. The court determined that the father had no contact with, and provided no support to, his daughter from September 7, 1989, to June 14, 1990. The court found that the best interests of Y.M.H. required that the father's parental rights be terminated.
The court found that the mother also had abandoned Y.M.H. by leaving her without good cause, and by failing to provide for Y.M.H.'s support and care. § 211.447. The court noted that between August 15, 1989, and July 3, 1990, the mother had visited with the child for only approximately ten hours and had provided only $33.00 in support. The evidence disclosed that the mother was working during this time period and had the means and ability to visit Y.M.H. The court further determined that during June 14 to July 3, 1990, the period in which the termination hearings occurred, the mother failed to demonstrate any desire or willingness to repent or make an effort to establish a relationship with Y.M.H. The court found that DFS had made reasonable efforts to provide services to the mother, but she failed to take advantage of these services and, instead, made herself wholly unavailable and disinterested in the well-being of her child. The court found that DFS had provided services for Y.M.H., including counseling, supervision, support, and home studies of her relatives. The court, therefore, found it to be in the best interests of Y.M.H. to terminate her mother's parental rights.
The trial court's decision will be affirmed unless there is no substantial evidence in the record to support it, the decision is against the weight of the evidence, or the trial court erroneously declares or misapplies the law. In the Interest of M.L.W., 788 S.W.2d 759, 762 (Mo.App.1990) (citing D.G.N. v. S.M., 691 S.W.2d 909, 912 (Mo. banc 1985)). This court will review the trial...
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