S.P.W., In re, WD

• Decision Date: 18 March 1986
• Docket Number: No. WD,WD
• Citation: 707 S.W.2d 814
• Parties: In re S.P.W., K.L.W., and C.A.W., Juveniles, JUVENILE OFFICER, Respondent, v. Deanna WARD, Appellant. 36207.
• Court: Missouri Court of Appeals

Page 814

707 S.W.2d 814

In re S.P.W., K.L.W., and C.A.W., Juveniles JUVENILE OFFICER, Respondent, v. Deanna WARD, Appellant.

No. WD 36207.

Missouri Court of Appeals Western District.

March 18, 1986.

Rehearing Denied April 30, 1986.

Clyde W. Curtis, Shook, Hardy & Bacon, Kansas City, for appellant.

James E. Herbertson, Jackson County Juvenile Court, Kansas City, for respondent.

Before NUGENT, P.J., and PRITCHARD and CLARK, JJ.

NUGENT, Presiding Judge.

The mother, Ms. Deanna Ward, appeals the circuit court's judgment terminating her parental rights in her three children. She complains first, that the court erred in considering the children's social files and admitting into evidence some of the records of the Wayne Miner Medical Center and the Blosser Home for Children. She then argues that without the inadmissible material the juvenile officer failed to adduce clear, cogent and convincing evidence to support the court's termination of her parental rights. We reverse.

To terminate a mother's rights in her children, the evidence of one or more of the statutory conditions set forth in § 211.447.2(2) must be clear, cogent and convincing. In re A.R.S., 609 S.W.2d 490, 491 (Mo.App.1980). A judgment in a court-tried case terminating parental rights will be affirmed unless no substantial evidence supports it, unless we are firmly convinced that it is against the weight of the evidence or that it erroneously declares or misapplies the law. Juvenile Office v. M.E.J., 666 S.W.2d 957, 960 (Mo.App.1984). The admission of improper evidence in a court-tried case terminating parental rights is not a ground for reversal unless upon exclusion of the inadmissible material the remaining competent evidence is not sufficient to support the court's judgment. Id.

Because we hold that the evidence was insufficient to support the findings of the juvenile court, we reverse the judgment and remand.

Soon after she was born in 1948, Ms. Ward was removed from her mother's custody. In 1963, she was committed to the Fulton State Hospital and later committed to the Marshall State School and Hospital. There she was found to be mildly retarded and to have a personality disorder. In 1975, the Jackson County Probate Court declared her legally incompetent, but in 1979 she moved into the community, and in 1980 she was adjudicated competent.

In 1978, while still legally incompetent and in the care of a guardian, she gave birth to S.P.W. Three weeks after his birth, the juvenile court ordered that custody of the child be placed with the Division of Family Services (DFS) under the provisions of §§ 211.031 and 211.181. ¹ In October 1979 while still legally incompetent she gave birth to K.L.W., and the court placed the child in the custody of DFS under §§ 211.031 and 211.181. Ms. Ward's third child, C.A.W., was born on May 11, 1981. By that time, she had been declared competent, but the court awarded custody of that child to DFS pursuant to §§ 211.031 and 211.181.

On August 16, 1983, the Jackson County Juvenile Officer filed three petitions to terminate Ms. Ward's parental rights of her three children. The petitions allege the same grounds for termination: First, sounding under § 211.447.2(2)(b), each petition charges that Ms. Ward had failed to care for the children on a continuing basis to the extent that she was able and that she had failed reasonably to comply with a court-ordered treatment plan. Second, in the language of § 211.447.2(2)(g), that Ms. Ward has a mental condition which renders her unable to form an intent to act knowingly and that no reasonable likelihood exists that her condition is reversible. Third, based on § 211.447.2(2)(i), that the children had come under the jurisdiction of the juvenile court pursuant to §§ 211.031 and 211.181, that the children had been under the court's jurisdiction for more than a year before the petition for termination was filed, that Ms. Ward had failed to rectify the conditions which caused the court to take custody of her children, and that no reasonable cause existed to believe that she would rectify the conditions in the future.

A consolidated hearing was held on March 1, 1984. Ms. Ward was represented by counsel, and the children were represented by their guardian ad litem. The father did not appear. The court terminated his parental rights on the ground of neglect, and that decision is not contested here.

The main witness presented by the juvenile officer was Karen Levy, an employee of the DFS who has been Ms. Ward's case worker since 1979. Ms. Levy testified that the goal of the DFS was to return custody of the children to Ms. Ward. To accomplish that goal, the DFS referred Ms. Ward to various programs and agencies that attempted to help her rectify her personal problems of low self-esteem, lack of self control, and lack of social skills, and to teach her hygiene, housekeeping, budgeting, cooking, nutrition, and child care, management and discipline.

The DFS referred Ms. Ward to numerous public and private agencies, but she failed in all of the programs. She either voluntarily left before the program was completed or was asked to leave because she could not get along with staff members or other patients or she failed to meet the goals of the program.

Ms. Ward and her child K.L.W. resided at the Blosser Home For Children for a little over three weeks in November of 1979. The home teaches "parenting" and homemaking skills and offers employment training. Patricia Wood, the director of the Blosser Home, observed Ms. Ward's progress while she was a resident. The staff tried to teach Ms. Ward how to care for her infant child, but she would not cooperate. In one incident Ms. Ward would not follow instructions on feeding the child, causing the child to be hospitalized. Although at times Ms. Ward seemed to understand an instruction, she would not carry it out in practice. On occasion, she became angry when a staff member tried to correct or instruct her. The home asked her to leave because she posed a threat to herself and others.

Ms. Ward participated in a 1982 court-ordered treatment program to which she and her attorney agreed. She was told that if she failed to meet the goals of that program the DFS would seek to terminate her parental rights. The plan required her to attend weekly counseling sessions and to try to control her anger, her outbursts and suicide threats. She was unable to understand that her children were not the same as adults and was unable to relate to them as children. Ms. Levy testified that Ms. Ward did not successfully complete the program because of her inability to address her personality problems. Although other plans were proposed to Ms. Ward, she would not agree to them. Ms. Levy concluded that no program was available that could help Ms. Ward, and she recommended that her parental rights be severed.

Michael Kellerman, a licensed clinical psychologist, ² treated Ms. Ward over a period of eighteen months in 1980 and 1981 at the Swope Parkway Mental Health Center. His impression was that Ms. Ward suffers from an "intermittent explosive disorder" which is possibly organically caused. He recommended that such disorder "be ruled out" by a psychiatrist or neurologist. He noted that, according to the center's records, a Dr. Ratman, an otherwise unidentified "psychiatrist," had made a diagnosis of "intermittent explosive disorder," a condition characterized by an inability to control one's anger and a low tolerance for frustration. Mr. Kellerman testified that possibly she would learn to control her behavior over a number of years, but he also stated that a "high probability" existed that she would not make a good parent. If she suffered from explosive personality disorder, it would certainly be a detriment to her being a parent.

Joyce Carter, a psychiatric social worker and supervisor at Wayne Miner Mental Health Center, conducted "parenting" skills classes attended by Ms. Ward and counseled her. She testified that Ms. Ward was reluctant to address her personal problems such as impulsiveness, lack of self-control, lack of social skills and unchecked anger, and that unless she successfully did so she would never be able to function as a parent.

Ms. Carter also observed Ms. Ward's supervised visits with her children. She stated that the children would be endangered if returned to their mother. She further testified that Ms. Ward was unsuccessful in the Wayne Miner program, and she could not think of a "parenting" program that would aid her unless she rectified her personal problems. She saw Ms. Ward from May, 1980, to July, 1982.

Between December, 1982, and August 31, 1983, Betty Weger, a psychologist and therapist with Briscoe-Carr Consultants, counseled Ms. Ward and developed a treatment plan for her. She saw Ms. Ward's main problem as her inability to control her anger. Ms. Ward failed to achieve the program's goals, and the program was cancelled. Ms. Ward continued to exhibit constant anger; almost anything would frustrate her. The counseling did not work. The therapist doubted that Ms. Ward would ever change and recommended that the DFS seek to sever Ms. Ward's parental rights mainly because her uncontrollable anger posed a threat to the physical safety of the children.

Throughout the time after the births of her children until the date these petitions were filed, Ms. Ward regularly continued to visit her children on schedules set by DFS and her counsellors. Ms. Levy testified that she and Ms. Ward never missed the regularly scheduled visits with the children, including hospital visits. Ms. Ward looked forward to those visits.

At trial, Mr. Curtis, Ms. Ward's counsel, objected to the introduction of records of the Blosser Home about Ms. Ward. The juvenile officer attempted to qualify them under the business records exception to the hearsay rule, but Mr. Curtis objected that some of the materials were not admissible under that exception, were double...