Greene Cnty. Juvenile Office v. R.W. (In re H.M.W.)

1

IN THE INTEREST OF: H.M.W. and W.E.L., children under seventeen years of age.

GREENE COUNTY JUVENILE OFFICE Petitioner-Respondent, v. R.W., Respondent-Appellant.

Nos. SD37737, SD37738

Court of Appeals of Missouri, Southern District, In Division

April 10, 2023

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY The Honorable Calvin R. Holden, Senior Judge

JENNIFER R. GROWCOCK, J. - OPINION AUTHOR

AFFIRMED

R.W ("Mother") appeals the judgments of the trial court^[1] that terminated her parental rights in to, and over her two minor children, H.M.W. ("Child 1"),^[2] born in July 2018, and W.E.L. ("Child 2"),^[3] born in May 2019, (collectively, the "Children"), on the basis of abuse and/or neglect under section 211.447.5(2), and failure to rectify under section 211.447.5(3).^[4] The trial court further found termination of Mother's parental rights to be in the Children's best interest.

Mother does not contest the application of any of the statutory grounds for termination of her parental rights to the Children in this appeal. She asserts only one point relied on claiming the trial court abused its discretion in finding that termination of her parental rights was in the Children's best interest. Mother fails to demonstrate reversible error in her challenge to the trial court's determination that termination was in the Children's best interest, and we therefore find no such abuse of discretion occurred. We affirm the trial court's judgments.

Standard of Review and Generally Applicable Legal Principles

In reviewing a judgment that terminates parental rights, this Court reviews:

". . . whether clear, cogent, and convincing evidence^[5] was presented to support a statutory ground for terminating parental rights under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Therefore, the trial court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law....

Conflicting evidence will be reviewed in the light most favorable to the trial court's judgment. Appellate courts will defer to the trial court's credibility assessments. When the evidence poses two reasonable but different inferences, this Court is obligated to defer to the trial court's assessment of the evidence.

....

After [an appellate court] determines that one or more statutory ground has been proven by clear, convincing, and cogent evidence, [the appellate court] must ask whether termination of parental rights was in the best interest of the child. At the trial level, the standard of proof for this best interest inquiry is a preponderance of the evidence; on appeal, the standard of review is abuse of discretion."

In the Interest of J.P.B., 509 S.W.3d 84, 90 (Mo. banc 2017) (quoting J.A.R. v. D.G.R., 426 S.W.3d 624, 626 (Mo. banc 2014)). "'In reviewing questions of fact, the reviewing court is to recognize that the circuit court is free to disbelieve any, all, or none of the evidence, and it is not the reviewing appellate court's role to re-evaluate the evidence through its own perspective.'" Id. (quoting J.A.R., 426 S.W.3d at 627).

The party seeking termination bears the burden of proof at trial. In the Interest of K.A.M.L., 644 S.W.3d 14, 20 (Mo. App. E.D. 2022). However, "[a]n appellant bears the burden to overcome many presumptions on appeal, including the presumption that the circuit court's judgment is correct." Lollar v. Lollar, 609 S.W.3d 41, 45 n.4 (Mo. banc 2020). In addition, "appellants always bear the burden of establishing error whatever the standard of review." City of De Soto v. Parson, 625 S.W.3d 412, 416 n.3 (Mo. banc 2021).

A "juvenile court may terminate the rights of a parent to a child . . . if the court finds that the termination is in the best interest of the child and when it appears by clear, cogent and convincing evidence that grounds exist for termination pursuant to subsection 2, 4 or 5" of section 211.447.6. Section 211.447.7 sets forth seven enumerated best interest factors that are statutorily required to be included in every judgment "[w]hen considering whether to terminate the parent-child relationship pursuant to subsection 2 or 4 of this section or subdivision (1), (2), or (3) of subsection 5":

(1) The emotional ties to the birth parent;

(2) The extent to which the parent has maintained regular visitation or other contact with the child;

(3) The extent of payment by the parent for the cost of care and maintenance of the child when financially able to do so including the time that the child is in the custody of the division or other child-placing agency;

(4) Whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent within an ascertainable period of time;

(5) The parent's disinterest in or lack of commitment to the child;

(6) The conviction of the parent of a felony offense that the court finds is of such a nature that the child will be deprived of a stable home for a period of years; provided, however, that incarceration in and of itself shall not be grounds for termination of parental rights;

(7) Deliberate acts of the parent or acts of another of which the parent knew or should have known that subjects the child to a substantial risk of physical or mental harm.

Section 211.447.7(1)-(7).

Here, the only issue before us on appeal relates to the trial court's best interest determination, which we review for an abuse of discretion. In Interest of Z.S.C. and H.E.C., 659 S.W.3d 665, 667 (Mo. App. S.D. 2023). "The 'best interest' determination is a subjective assessment based on the totality of the circumstances and is discretionary." K.A.M.L., 644 S.W.3d at 25; In the Interest of M.K.S., 612 S.W.3d 260, 262 (Mo. App. S.D. 2020) (best interest determination is a subjective assessment that is not reweighed by the appellate court). "A [circuit] court abuses its discretion when a ruling is clearly against the logic of the circumstances then before it and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." In the Interest of D.N.D., 646 S.W.3d 748, 751 (Mo. App. S.D. 2022) (internal quotation marks and citation omitted).

Facts and Procedural Background

On January 1, 2020, Springfield Police Department patrol officer Stephen Layton ("Officer Layton") was dispatched to Cox North Hospital for a Department of Family Services ("DFS") assist with the Children's Division (the "Division"). According to the DFS worker hospital staff hotlined parents for physical abuse who came to the hospital with a young child, Child 2, who had injuries not consistent with the story the parents gave to the hospital staff. Officer Layton observed that Child 2 had "a large bruise that covered his right cheek, red marks within the bruising on his cheek, bruising around his entire right eye, bruising on his right forehead near his temple, bruising on his right eyebrow, and his eye was swollen and looked like it was irritated."

Mother and Child 2's father indicated Child 2 was asleep when he sustained the injuries and they speculated the injuries were caused by Child 2's sibling, Child 1, "potentially crawling in the crib while he was asleep and striking him with an Xbox controller." Mother was agitated that DFS and Springfield Police were called, but did not seem overly concerned that Child 2 was injured. Mother was argumentative towards staff and not welcoming toward DFS. Prior to Officer Layton arriving, she had punched a door hard enough to knock it off the rails when she was informed DFS was notified. Mother called several nurses names.

Officer Layton stepped out of the room and talked to the nurse who treated Child 2 and learned the information Mother and Child 2's father provided to him was not the same information that they provided to the nurse. At that time, Officer Layton agreed with DFS to divert the Children, and the parents suggested the Children be diverted to Child 2's father's parents.

After the Children were diverted, a team decision-making meeting ("TDM") was held at the Division. Mother and Child 2's father were present. Mother was very upset and irritable. A few times she raised her voice, slammed her hands on the table, and had to walk out of the meeting because she had gotten upset. At that time, Mother was not amenable to working with services. Mother admitted to having mental health needs, but she did not want help at that time. The Division could not assure safety of the Children with the parents so a referral was made to the Juvenile Office. The Children were adjudicated as neglected and/or abused in a jurisdictional hearing held in the Circuit Court of Greene County, Missouri, Juvenile Division. At the time of trial, the Children had been under the care and supervision of the trial court and in the temporary legal custody of the Division since January 10, 2020.

A treatment plan was created for Mother during a Family Support Team ("FST") meeting. Mother agreed to complete a psychological or psychiatric evaluation and follow the recommendations of the evaluation. Mother completed three evaluations. Mother failed to consistently follow through with the recommendations of the evaluations, including continuous therapy and medication management. Mother failed to sign releases for the Division to obtain records from medical doctors or prescribers.

While the Children were in the State's custody, Mother underwent counseling. First, she engaged in couple's counseling with Child 2's father in September, 2020. Mother was unemployed until the very end of the counseling sessions. Mother did not cook or clean or do the things that needed to be done in the home. Mother admitted she was depressed. Al...