K.N.D. v. C.K.D.

IN THE INTEREST OF: K.N.D., D.D.D. And G.N.D.; JUVENILE OFFICER; DEPARTMENT OF SOCIAL SERVICES, CHILDREN'S DIVISION, Respondent, v. C.K.D., Appellant, D.L.D., Appellant.

Nos. WD84708, WD84709, WD84712, WD84736, WD84737, WD84738

Court of Appeals of Missouri, Western District

April 19, 2022

APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY The Honorable Jon E Beetem, Judge

Before Division One: Lisa White Hardwick, Presiding Judge, Alok Ahuja, and Mark D. Pfeiffer, Judges

Lisa White Hardwick, Judge

C.K.D ("Mother") and D.L.D. ("Father") appeal the termination of their parental rights to three of their children, K.N.D., D.D.D., and G.N.D. Father challenges the sufficiency of the evidence to support one of the three grounds on which the court terminated his parental rights and argues the court erred in overruling his hearsay objection to testimony about the children's out-of-court statements. Mother challenges the sufficiency of the evidence to support the three grounds on which the court terminated her parental rights and argues the court's finding that termination was in the children's best interest was against the weight of the evidence. Both parents contend the circuit court erred in denying their motion for a continuance or to keep the record open until after the resolution of their criminal trials on charges of child abuse and endangering the welfare of a child. For reasons explained herein, we affirm the judgments.

Factual and Procedural History

In the fall of 2018, Mother and Father, who were married in August 2012, were living in Jefferson City with their combined six children. Three children were theirs: K.N.D., a girl born on November 15, 2015, D.D.D., a boy born on September 3, 2012 and G.N.D., a boy born on July 20, 2011. Two children were from Father's prior relationship: N.G-A.D., a girl born on December 29, 2009, and N.L.D., a boy born on May 20, 2008. One child, A.I.R., a girl born on April 9, 2010, was from Mother's prior relationship.

In November 2018, the court adjudicated all of the children in need of the care and protection of the court for abuse and neglect based on the following findings: In the early morning hours of October 10, 2018, N.G-A.D. and A.I.R. were found walking along Highway 54 with wet clothing, wet hair, and no adult supervision. The girls reported that they had been locked in a room for several days, were not allowed to talk and had to urinate on the wood floor because they were locked in their bedroom. Children's Division observed that the girls' bedroom was bare and was without blankets, beds, pillows, or other furnishings except a dresser. The girls' hair was misshapen, and they appeared to have recently shaved heads. Both girls said that Father had cut their hair as punishment. N.G-A.D. and A.I.R. reported that Father threw N.G-A.D. around the room, choked her, smacked her face, and caused her to fall to the ground. A.I.R. reported that Father spanked her with a belt until she bled. Children's Division and law enforcement observed a large bruise on A.I.R.'s outer right thigh, which A.I.R. said was the result of Father's spanking her with a belt. A.I.R. was seen by a pediatrician, who confirmed her injury was consistent with child physical abuse. None of the children attended school, had a pediatrician, engaged in activities, or socialized outside of the home. The children were permitted to change into clean underwear and shower only on Sundays. The children received limited peanut butter crackers and peanut butter sandwiches for breakfast and dinner and were not fed lunch. Children's Division observed minimal food in the home. Mother failed to protect and/or provide care to her children, and both Mother and Father were in the Cole County Jail awaiting trial for multiple counts of felony child abuse or neglect and felony first-degree endangering the welfare of a child.

The court ordered all of the children removed from the home and placed in foster care. Due to the level of abuse, the circuit court relieved the Children's Division of its statutory obligation to make reasonable efforts toward reunification pursuant to Section 211.183.7.^[1] Additionally, a no-contact order was put in place as a condition of bond in Mother's and Father's criminal cases that prohibited them from having visitation with the children.

After the children were removed from Mother and Father's care, Brenda Porter, a forensic interviewer at Rainbow House, conducted separate recorded interviews with all of the children except K.N.D., who was too young. Kathleen Miller, their Children's Division social worker, also spoke with the children. All of the children except K.N.D. underwent separate weekly counseling sessions with Kym Armontrout for approximately a year following their removal from the home before they began going to different therapists, from whom they continued to receive treatment through the time of trial.^[2]

In May and June 2019, the Juvenile Officer of Cole County ("Juvenile Officer") filed petitions to terminate Mother's and Father's parental rights to K.N.D., D.D.D., and G.N.D.; Father's parental rights to N.G-A.D. and N.L.D.; ^[3] and Mother's parental rights to A.I.R. ^[4] Each of the six petitions asserted, as one of the grounds for termination, that the children had been abused or neglected under Section 211.447.5(2).

The court heard all six petitions in one bench trial. Evidence at trial included the testimony of the highway patrol officer who picked up N.G-A.D. and A.I.R. after they ran away in October 2018; the testimony of Dr. Nancy Howe, a pediatrician who examined the children immediately after they were removed from the home; Armontrout's testimony detailing her observations and opinions of the mental and emotional health of the children; Miller's testimony and reports regarding her investigation and conversations with the children, Mother, and Father; and Porter's testimony describing her interviews with the five eldest children. The court also admitted the recordings of Porter's interviews with the children.

Following the trial, the court entered judgments terminating Mother's and Father's parental rights to K.N.D., D.D.D., and G.N.D.; Father's parental rights to N.G-A.D. and N.L.D.; and Mother's parental rights to A.I.R. In each of the six judgments, the court found that termination was appropriate on the bases of abuse and neglect under Section 211.447.5(2), failure to rectify under Section 211.447.5(3), and parental unfitness under Section 211.447.5(5)(a). The court further determined that termination of Mother's and Father's parental rights was in each child's best interest and supported this conclusion with specific findings on the factors listed in Section 211.447.7.

Mother and Father appeal the termination judgments. This case addresses Mother's and Father's appeals of the termination of their parental rights to K.N.D., D.D.D., and G.N.D. We affirmed the termination of Father's parental rights to N.G- A.D. and N.L.D. in N.L.D. v. D.L.D., No. WD84710 (Mo. App. April 19, 2022), and the termination of Mother's parental rights to A.I.R. in A.I.R. v. C.K.D., No. WD84735 (Mo. App. April 19, 2022).

Standard of Review

"Termination of parental rights is an exercise of awesome power, and therefore we review such cases closely." Interest of D.L.S., 606 S.W.3d 217, 222 (Mo. App. 2020) (citation omitted). Termination is appropriate when there is clear, cogent, and convincing evidence to support a statutory ground for termination and when a preponderance of the evidence establishes that termination of parental rights is in the child's best interest. Id. "Clear, cogent, and convincing evidence is evidence that 'instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true.'" Mo. Dep't. of Soc. Servs, Children's Div. v. B.T.W., 422 S.W.3d 381, 391 (Mo. App. 2013) (citation omitted).

Whether there is clear, cogent, and convincing evidence to support a statutory ground for terminating parental rights is reviewed under the standard of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). J.A.R. v. D.G.R., 426 S.W.3d 624, 626 (Mo. banc 2014). Therefore, we will affirm the termination judgment 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. Murphy, 536 S.W.2d at 32. In our review, we defer to the circuit court's factual findings and consider the evidence and reasonable inferences therefrom in the light most favorable to the judgment. In re P.L.O., 131 S.W.3d 782, 789 (Mo. banc 2004). We recognize that the circuit court was "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." In Interest of J.P.B., 509 S.W.3d 84, 90 (Mo. banc 2017) (citation omitted).

Analysis

Sufficiency of Evidence to Support Termination

In Father's Points I, II, and III and Mother's Point I they contest the sufficiency of the evidence to support the court's terminating their parental rights on the ground of abuse or neglect pursuant to Section 211.447.5(2).^[5] Looking first at Father's points, with regard to D.D.D. (Point I), K.N.D. (Point II), and G.N.D. (Point III), he makes the same claims: there was no evidence of abuse specific to that child, and the evidence about the children as a group was not clear and, at best, was only that they were unschooled and fed only two meals a day.

Section 211.447.5(2) provides that the court may terminate parental rights if it is established that the child has been abused or neglected. In deciding whether to terminate on this ground ...