T---- M. E----, In Interest of, 18580

• Decision Date: 26 April 1994
• Docket Number: No. 18580,18580
• Citation: 874 S.W.2d 552
• Parties: In the Interest of T__ M. E__. Doug BEEVERS, Juvenile Officer, Judicial Circuit 37, Respondent, v. M__ J__ H__, Appellant, and L__ D__.
• Court: Missouri Court of Appeals

Page 552

874 S.W.2d 552

In the Interest of T__ M. E__ Doug BEEVERS, Juvenile Officer, Judicial Circuit 37, Respondent, v. M__ J__ H__, Appellant and L__ D__.

No. 18580.

Missouri Court of Appeals,

Southern District,

Division Two.

April 26, 1994.

Frederick W. Martin, III, West Plains, for appellant.

No appearance for respondent.

CROW, Judge.

The Juvenile Officer of Judicial Circuit 37 brought this action per § 211.447, RSMo Cum.Supp.1991, ¹ to terminate the parental rights of M__ J__ H__ ("Mother") and L__ D__ ("Father") to their daughter, T__ M. E__, born November 23, 1982 ("Daughter").

The juvenile court ² held an evidentiary hearing at which Mother appeared in person and with counsel. Father was served with summons, but defaulted.

The juvenile court thereafter entered an order terminating the parental rights of Mother and Father to Daughter per § 211.447.2, which provides, in pertinent part:

"The juvenile court may terminate the rights of a parent to a child upon a petition filed by the juvenile officer ... if it finds that the termination is in the best interests of the child and when it appears by clear, cogent and convincing evidence that one or more of the following grounds for termination exist:

....

(3) The child has been under the jurisdiction of the juvenile court for a period of one year, and the court finds that the conditions which led to the assumption of jurisdiction still persist, or conditions of a potentially harmful nature continue to exist, that there is little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the near future, or the continuation of the parent-child relationship greatly diminishes the child's prospects for early integration into a stable and permanent home. In determining whether to terminate parental rights under this subdivision, the court shall consider and make findings on the following:

(a) The terms of a social service plan entered into by the parent and the division and the extent to which the parties have made progress in complying with those terms;

(b) The success or failure of the efforts of the juvenile officer, the division or other agency to aid the parent on a continuing basis in adjusting his circumstances or conduct to provide a proper home for the child;

(c) A mental condition which is shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed and which renders the parent unable to knowingly provide the child the necessary care, custody and control;

(d) Chemical dependency which prevents the parent from consistently providing the necessary care, custody and control over the child and which cannot be treated so as to enable the parent to consistently provide such care, custody and control."

Mother, alone, appeals. Her sole point relied on states the proof was insufficient to support termination of her parental rights in that there was no clear, cogent and convincing evidence that the conditions which led the juvenile court to assume jurisdiction of Daughter (in 1990) still persisted when this termination action was tried (in 1992), or that conditions of a potentially harmful nature continued to exist.

In addressing that issue, we view the evidence in the light most favorable to the juvenile court's order, giving due regard to that court's opportunity to judge the credibility of witnesses. In the Interest of M.E.W., 729 S.W.2d 194, 195-96 (Mo. banc 1987).

So viewed, the evidence establishes that Mother and Kenneth H__ began living together when Daughter was "two weeks old"--early December, 1982. At that time, Mother had a son. As best we can determine from the record, he was then four or five years of age. However, he had been removed from Mother's care because of "neglect and abuse" when he was eighteen months of age and placed with Mother's sister in another state.

Mother married Kenneth on February 17, 1984.

On a date undisclosed by the record, but described by Mother as "around '87," she was diagnosed as having "bipolar disorder." Since then, she has taken medication for it.

Although the evidence is imprecise, we glean from it that Mother was placed on probation for "burglary and stealing" in 1987. We cannot ascertain whether that was before or after the diagnosis mentioned in the preceding paragraph. Mother disclosed she had an earlier conviction for another "burglary, stealing." She testified it was "in 1976, I believe."

On March 11, 1988, the Clay County office of the Division of Family Services ("DFS") received a "hot-line report" about Daughter, who was hospitalized in Olathe, Kansas. According to the DFS investigator, "[T]he family was living in a low income housing unit in Excelsior Springs." The investigator spoke with Mother about the reason for Daughter's hospitalization. According to the investigator, Mother indicated "she was having problems with [Daughter's] behavior," and that was why Daughter was hospitalized.

As we understand the investigator's testimony, Mother was also hospitalized at that time. According to the investigator, that was because of "[d]epression and psychological problems."

The investigator testified that Mother "expressed some concerns ... regarding possible sexual abuse to [Daughter]." Mother also revealed "quite a bit of domestic violence" and said there had been "several occasions in which [Daughter] had been physically hurt during the fights." One such instance had been in June, 1987, when Daughter's head had either hit, or been struck by, a coffee table, requiring stitches.

The investigator's inquiries gave her reason to believe Daughter had been molested by Todd H__, Kenneth's son. According to Mother, Todd was then fifteen, and was living with "Grandma." However, he spent weekends with Mother and Kenneth. Other evidence in the record indicates Todd would have been about eighteen, not fifteen, at the time.

Mother testified Todd admitted to her (evidently before Daughter's hospitalization) that he "had played with [Daughter's] genital area." Mother related this to the investigator.

Mother and Daughter were released from their respective hospitalizations, but the dates do not appear in the record. Mother was hospitalized again April 24, 1988, for "back surgery."

Later, on a date unrevealed by the record, Mother, Kenneth and Daughter moved to Ray County. From there, they moved to Howell County. Asked when the latter move occurred, Mother testified, "Probably '88, '89."

On February 6, 1990, Beth Coble, a social worker with the Howell County DFS office went to the home of Mother and Kenneth. Daughter was there, as was Mother's son (then age twelve or thirteen). He had been in the home since "probably the middle of January." Around February 18, 1990, Mother's son was placed under juvenile jurisdiction and removed to a boys' residential facility for "treatment of behaviors."

On March 15, 1990, Ms. Coble prepared a written treatment plan for Mother. The plan pertained to Daughter and Mother's son. Mother refused to sign it.

On July 30, 1990, Daughter was admitted to Lakeland Regional Hospital in Springfield. According to Mother, this was because Mother's psychiatrist told her that Daughter was "out of control ... had behavioral problems ... and ... needed to go to the hospital." Daughter was placed in a group therapy program conducted by Laurie Massey, a clinical social worker at Lakeland.

On August 15, 1990, the juvenile officer filed a petition in juvenile court in Howell County asking that court to take jurisdiction of Daughter. The petition averred, inter alia, that Daughter was in need of care and treatment because she suffered physical abuse, or the threat thereof, from Kenneth; that in February, 1988, Daughter had been hospitalized in Kansas because of aggressive behavior; that in February, 1990, Mother's son was removed from the home; that Mother had bipolar disorder and chronic depression; that Mother was on probation for burglary and stealing, and was facing a violation hearing because of a new felony; that Daughter was hospitalized at Lakeland for treatment of behavioral problems; and that Mother was unwilling or unable to provide a safe and secure environment for Daughter.

On August 29, 1990, an incident occurred at Lakeland, the details of which are not fully developed in the transcript. As we understand the testimony, one or two other children reported that Daughter simulated sexual acts with a teddy bear and a doll. According to therapist Massey, one of the children quoted Daughter as saying, "My mother, brother, and stepfather did this all the time." Massey questioned Daughter about the incident. Daughter denied it. Massey never saw Daughter "sexually act out."

According to Massey, children are often frightened when they initially get into treatment. This is because they have had threats against them, hence they do not share things until they are in a safe environment. Often, that takes years.

On September 11, 1990, a physician examined Daughter for physical evidence of sexual abuse. According to a DFS memo, the physician found the hymen intact and no scarring or evidence of tears. The memo stated, "[T]his would rule out sexual intercourse, but not oral sex or fondling."

On September 13, 1990, the juvenile court held a hearing on the petition filed August 15, 1990. Mother appeared in person and with counsel. The juvenile court made a docket entry that date which reads, in pertinent part:

"Statement of mother no contest but confesses jurisdiction.... Statement of Guardian Ad Litem confess [sic] all allegations. Allegations on paragraphs __ only are true, juvenile is within jurisdiction of Court per Sec. 211.031. Child placed in legal custody of DFS. Child placed in physical custody of DFS."

In early October, 1990 (the date is unrevealed by the record), Daughter was discharged from Lakeland. Therapist Massey explained:

"[Daug...