M.R., In Interest of, s. 65481

• Decision Date: 07 February 1995
• Docket Number: 65488,Nos. 65481,s. 65481
• Parties: In the Interest of M.R., a juvenile, and E.R., a juvenile.
• Court: Missouri Court of Appeals

Page 193

894 S.W.2d 193

In the Interest of M.R., a juvenile, and E.R., a juvenile.

Nos. 65481, 65488.

Missouri Court of Appeals,

Eastern District,

Division One.

Feb. 7, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 14, 1995.

John C. Maxwell, St. Charles, guardian ad litem.

Claude C. Knight, St. Charles, for respondent.

GARY M. GAERTNER, Judge.

Appellants, M.R. and E.R., juveniles, appeal from an order of the Circuit Court of the County of St. Charles terminating the parental obligations of J.R. ("father") and I.R. ("mother"), the adoptive parents of appellants. We affirm.

M.R., born July 21, 1976, and E.R., born September 21, 1979, both victims of neglect and physical abuse at the hands of their natural mother, ¹ were adopted by father and mother on August 21, 1987. Father and mother had three other adopted children in their home at that time: E.R., a male, born on August 12, 1968; K.R., a male, born on December 21, 1970; and J.R., ² a female, born on March 5, 1976.

On February 8, 1991, appellants were removed from the adoptive home after they made allegations of sexual abuse against K.R. Father and mother refused to believe appellants' allegations, and also refused to protect the girls from contact with K.R. while an investigation was conducted into the charges. Appellants were placed in the custody of the Division of Family Services ("DFS"). For the first several months after removal from the adoptive home, appellants spent time between foster homes and hospitals, and finally ended up at a residential care facility where they were provided with a therapeutic, structured environment.

On April 12, 1993, a Petition for Termination of Parental Rights was filed by the juvenile officer of St. Charles County. Guardian Ad Litem ("GAL") subsequently filed a motion for alternative order of support on July 13, 1993. In this motion, GAL suggested that if the court granted the petition for termination of parental rights, the court should alternatively enter an order requiring father and mother to continue financial support for M.R. and E.R., due to the extreme nature of the girls' emotional and mental problems.

Father and mother filed their consents to the termination of parental rights on July 20, 1993. ³ That same day, a hearing was held on the petition before a Commissioner of the Family Court Division. Live testimony was presented at the hearing by father and mother; Sandra Hartke, a social worker for DFS; Wendy Ellis, a licensed clinical social worker; Raymond Grush, the juvenile officer responsible for filing the petition at issue; and Tracy Borgmeyer, an alternative care worker for DFS. ⁴ In addition, reports by various psychiatrists who were working, or had worked, with M.R. and E.R. were entered as exhibits.

The evidence established that M.R. was suffering from major depression with histrionic and borderline traits, post traumatic stress disorder, and attention deficit disorder. M.R. suffered from emotional suicidal gestures and experienced dramatic mood swings. She was on medication prescribed by her psychiatrist. Her prognosis was "guarded to fair", and it was believed she would require a structured living environment for an extended period of time, potentially well beyond the age of eighteen.

E.R. was diagnosed as suffering from dysthymic disorder, oppositional deficit disorder, mild mental retardation, mixed speech and language developmental delays, major affective disturbance, recurrent depression, learning disorder, attention deficit hyperactive disorder and possible borderline personality disorder. She suffered from hallucinations, screamed and yelled, and talked to and cursed at inanimate objects. She, too, was prescribed medication by her psychiatrist. Her prognosis was "guarded", and it was determined she would require a structured living environment which, as with M.R., may extend well beyond the age of eighteen.

Although all witnesses agreed it was in the best interests of the girls that there be no further contact between father and mother and M.R. and E.R., the DFS representatives suggested the best interests would not be served by a termination of parental rights. Sandra Hartke testified that because of the severity of the girls' problems, they were not adoptable. As such, there would be no point in terminating parental rights to free the girls for adoption. Tracy Borgmeyer stated DFS supported the position that "for the children, it is not in their best interests to terminate parental rights. One reason would be that there is no prospect for adoption. The other reason would be that they would not continue to receive any financial support from [father and mother]." Ms. Borgmeyer agreed that if parental rights were terminated, M.R. would be without a source of support one year and one day after the date of the hearing, M.R.'s eighteenth birthday. ⁵

The Commissioner entered his Findings of Facts, Conclusions of Law and Recommendations on September 13, 1993. The findings, conclusions and recommendations were subsequently adopted by the trial court. Supplemental findings, conclusions and recommendations were later entered by the Commissioner and adopted by the court. It was determined the best interests of the children would be served by a termination of father and mother's parental rights. The court concluded there was no foundation for GAL's request that financial support continue in the event parental rights were terminated. It is from this order M.R. and E.R. now appeal.

Five points are raised for review. First, appellants argue the trial court erred by stating as a supplemental finding that M.R. and E.R. might, with proper treatment and care, become likely candidates for adoption. Appellants then argue error in the court's supplemental finding that appellants' rights of inheritance, if any, could be terminated by will, since, as adopted minors, appellants are eligible for certain statutory entitlements which cannot be abrogated by will. Appellants' final three points can be presented as an argument that the court erred in failing to enter an order that father and mother continue financial support for M.R. and E.R. despite the fact parental rights were terminated. We find this final argument dispositive.

Our standard of review in termination of parental rights matters requires that we sustain the judgment of the trial court unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. In Interest of A.M.K., 723 S.W.2d 50, 52 (Mo.App.E.D.1986). In any proceeding for termination of parental rights, the best interests of the children are the primary concern. P.A.W. v. A.M.W., 716 S.W.2d 284, 288 (Mo.App.E.D.1986).

Interestingly,...