T.T.G. v. K.S.G.

• Decision Date: 05 October 2017
• Docket Number: No. SC 96153,SC 96153
• Citation: 530 S.W.3d 489
• Parties: IN the INTEREST OF: T.T.G. and S.S.G., W.J.K. and C.A.C.K., Respondents, v. K.S.G., Appellant, and G.H., et al., Respondents.
• Court: Missouri Supreme Court

530 S.W.3d 489

IN the INTEREST OF: T.T.G. and S.S.G., W.J.K. and C.A.C.K., Respondents,

v.K.S.G., Appellant,andG.H., et al., Respondents.

No. SC 96153

Supreme Court of Missouri, en banc.

Opinion issued October 5, 2017

The mother was represented by Christopher Nease, Megan Roth and Elizabeth Fessler of Shook, Hardy & Bacon LLP in Kansas City, (816) 474-6550; her guardian ad litem was Daniel Berezoski of Husch Blackwell LLP in Kansas City, (816) 983-8265.

The prospective adoptive parents were represented by Sarah H. Ginther, an attorney in Liberty, (816) 217-9998.

The twins' guardians ad litem were Catherine Wiehl and Claire M. Terrebonne of Jackson County CASA in Kansas City, (816) 842-2272.

The juvenile officer was represented by Darren Korte of the juvenile office in Kansas City, (816) 435-4725.

Laura Denvir Stith, Judge

K.S.G. ("Mother") appeals from a judgment terminating her parental rights to her twin girls, T.T.G. and S.S.G. ("the twins"). The circuit court concluded termination was proper on numerous grounds under section 211.447.5.¹ Mother appeals, challenging, inter alia, the sufficiency of the evidence to support the circuit court's finding that grounds for termination under section 211.447 were satisfied. Assuming a ground for termination is supported by the record, Mother does not challenge that termination is in the twins' best interests.

This Court will affirm a judgment terminating parental rights if any one of the grounds on which termination was granted is supported by clear, cogent, and convincing evidence. In re P.L.O., 131 S.W.3d 782, 788 (Mo. banc 2004) (citations omitted). For the reasons set out below, this Court finds the record supports termination on the ground of neglect under section 211.447.5(2). Under section 453.040, Mother's consent to the adoption is not needed where, as here, one of the grounds for termination under section 211.447 is satisfied. This Court affirms the judgment without reaching the other issues raised.

I. FACTUAL AND PROCEDURAL BACKGROUND

This Court views the evidence and permissible inferences drawn from the evidence in the light most favorable to the judgment. In re Adoption of C.M.B.R., 332 S.W.3d 793, 801 (Mo. banc 2011) ; Rule 73.01(c). Viewed in that light, the facts are as set out below.

Mother is the biological mother of five children and has been involved with the children's division of the Missouri Department of Social Services since 2012. She was hospitalized at Truman Behavioral Health, a facility providing psychiatric care, at the time she gave birth to the twins in April 2015. The children's division removed the twins from Mother immediately after birth due to concerns surrounding Mother's mental health and her failure to remain medically compliant with her mental health medication. Six weeks later, the twins were placed in foster care with W.J.K. and C.A.C.K. ("foster parents"). A week thereafter, the circuit court took jurisdiction of the twins.

The initial plan was reunification of Mother with the twins. Mother's three older children already were in foster care and had been under the circuit court's jurisdiction since 2012. Since that time, the children's division has offered services to Mother, including psychological evaluations, urinalysis drug testing, and parent aide services to include one-on-one services, parenting skills training, therapeutic services, and supervised visitation.

Mother's participation in these services continued after the twins' birth and placement in foster care, and also included individual and group therapy and voluntary drug testing. The record shows, however, that even though Mother was receiving one-on-one parenting training, Mother's visits with the twins were inconsistent and not fully successful. Mother struggled with having age-appropriate expectations of the twins and also had difficulty bonding with them; the twins instead bonded with their foster family. Mother also tested positive for marijuana, opiates, and amphetamines

while participating in voluntary drug testing. Her drug use was especially problematic because, as discussed further below, she suffered from serious mental health issues and an IQ putting her in the mildly mentally retarded range.

On January 12, 2016, the foster parents filed a petition under section 453.040 to terminate Mother's and Father's parental rights as to the twins and to adopt the twins. The foster parents alleged Mother's consent for adoption was not required pursuant to section 453.040(7) because she had abandoned or neglected the children, and further that grounds for termination were shown under section 211.447.5(1), (2), (3), (6)(a), and (6)(b).²

In April 2016, a year after the twins' birth, Mother's lack of progress caused the circuit court to determine reunification no longer was in the twins' best interests and to enter an order providing: "The permanency plan is termination of parental rights and adoption.... Reasonable efforts have included identification of an adoptive resource and case management services. Other reasonable efforts have included encouraging the mother to participate in mental health treatment and authorized services per previous Court orders." The circuit court ordered services for Mother to continue, including supervised visits for her and the twins' maternal grandmother, individual therapy, random urinalysis, and continued drug treatment.

In the meantime, the three older children's foster parents also filed a petition for adoption and for termination of Mother's parental rights, alleging abandonment of the children for six months without good cause under section 211.447.5(1), abuse or neglect under section 211.447.5(2), failure to rectify conditions that led to jurisdiction over the children under section 211.447.5(3), and parental unfitness under section 211.447.5(6). The petition also alleged Mother's consent to adoption was not required because she abandoned or neglected the children under section 453.040(7). A bench trial was held on the petition to terminate Mother's rights as to the older children while the adoption petition as to the twins still was pending. Following the bench trial, in August 2016, the circuit court involuntarily terminated Mother's parental rights as to her three older children under all of the alleged grounds for termination. Mother did not appeal that judgment.

The adoption petition as to the twins came to trial three months later, in November 2016. Without objection, the circuit court took judicial notice of all five children's juvenile division records, along with the case files and contents of the adoption and termination of parental rights proceeding involving the older three children. At trial, the evidence revealed, as part of her involvement with the children's division, Mother received two psychological evaluations, one in 2012 and one in 2015, both of which indicated pervasive and ongoing mental illnesses, specifically schizoaffective disorder

and adjustment disorder, combined with low IQ scores. Those psychological reports also indicated Mother abused cannabis, which was consistent with Mother's failed drug tests. By the time of trial, Mother had stopped drug testing and stopped participating in individual therapy.

The children's division, the twins' guardian ad litem, and the juvenile office recommended terminating Mother's parental rights. In December 2016, the circuit court found by clear, cogent, and convincing evidence that grounds for termination had been established for neglect under section 211.447.5(2), failure to rectify under section 211.447.5(3), parental unfitness under section 211.447.5(6)(a), and the unrebutted presumption of unfitness due to a prior involuntary termination under section 211.447.5(6)(b)(a). It further found Mother's consent to adoption was not necessary under section 453.040(7) because she had neglected or abandoned the twins in the six months preceding the petition for adoption. Additionally, the circuit court found termination and adoption to be in the twins' best interests. See § 211.447.6; § 453.005. Accordingly, the circuit court terminated Mother's parental rights and approved the foster parents' adoption of the twins. Because Mother alleges the presumption of unfitness set out in section 211.447.5(6)(b) is unconstitutional, she appealed directly to this Court. Mo. Const. art. V, sec. 3.

II. STANDARD OF REVIEW

Termination of parental rights under section 211.447.5 requires "the trial court [to] find by clear, cogent, and convincing evidence that one or more grounds for termination exists under subsections 2, 3 or 4 of section 211.447."

P.L.O., 131 S.W.3d at 788. "Proof under this standard of only one of the statutory grounds alleged is sufficient to sustain the judgment." Id. at 789.

This Court reviews whether there was clear, cogent, and convincing evidence to support a statutory ground for terminating parental rights and to support a finding that consent is not necessary for adoption under section 453.040 under the standard of review set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) :

[T]he trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.

Id. at 32 ; see also In Interest of J.P.B., 509 S.W.3d 84, 90 (Mo. banc 2017); C.M.B.R., 332 S.W.3d at 819. "In all of these determinations, the reviewing court is deferential to the fact-findings of the trial court and considers all the evidence and reasonable inferences from the evidence in the light most favorable to the judgment." P.L.O., 131 S.W.3d at 789 (citations omitted). This Court gives the same amount of deference to the circuit...