Abbott v. Whitley

973 S.W.2d 165, 1998 Mo. App. LEXIS 1475
CourtMissouri Court of Appeals
DecidedJuly 30, 1998
DocketNo. 21839
StatusPublished
Cited by1 cases

This text of 973 S.W.2d 165 (Abbott v. Whitley) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abbott v. Whitley, 973 S.W.2d 165, 1998 Mo. App. LEXIS 1475 (Mo. Ct. App. 1998).

Opinion

GARRISON, Presiding Judge.

Ermajean Whitley (“Mother”) appeals from the juvenile court’s judgment terminating her parental rights with respect to her daughter, M.M., and her son, O.M. We affirm.

M.M., born August 10, 1985, and O.M., born August 16, 1986, came under the care and custody of the Division of Family Services (the “DFS”) on May 7, 1987, when the juvenile court ordered their emergency removal from Mother’s home. The incident that precipitated their removal occurred shortly before that time, when Mother went to Michigan, leaving the children with an elderly man who was neither able nor willing to take care of them for an extended period. Mother apparently failed to make arrangements for the children’s food, clothing, and medical needs, and they developed pneumonia while she was gone. On June 16, 1987, the juvenile court found that the children had been neglected and decreed that they become wards of the court.

From May 1987 to June 1988, M.M. and O.M. remained in the custody of the DFS, although Mother visited them sporadically. During this time, Mother was briefly incarcerated. On June 28,1988, Mother, together with the children, entered the Tri-County Family Treatment Center, where they re[167]*167mained until sometime in July 1989. On July 25,1989, M.M. and O.M. were again removed from Mother’s custody. The children were in DFS custody for the next seventeen months. During that time, Mother had scheduled visits with the children, but missed several of them. On December 5, 1990, the children were placed with their aunt, B.D.

Following the children’s placement with their aunt, Mother’s contact with them diminished significantly. In February 1991, Mother contacted the DFS and requested the children’s address. She wrote them a letter in April 1991, telephoned them at least once in May or June 1991, and visited them on July 4, 1991. On October 2, 1991,'however, Mother signed a document consenting to the termination of her parental rights with respect to M.M. and O.M. In February 1992, Mother told DFS case worker Tammy Moss that she was tired of hearing about the children, and “wanted to just run away from it all.”

Mother was arrested in June 1992, and was later convicted of second degree robbery and sent to prison for approximately two years. The DFS closed its file on Mother on June 15, 1992, because of her incarceration, and because she had failed to take advantage of its services or of the opportunities to visit her children. While in prison, Mother sent the children a birthday card and a Christmas card, and wrote them several letters. In 1993, she sent them Christmas presents and a letter. She also made three collect calls to the children.

Mother was paroled in 1994, and made few attempts to contact M.M. and O.M. between that time and the termination hearing, which occurred on June 25, 1997 and July 16, 1997. Mother testified that she wrote and called the children several times, and that B.D. rebuffed her attempts at contact. She claimed that on one occasion, she sent M.M. and O.M. each a birthday card with $50 inside, and that B.D. tore them up. Ms. Moss testified that Mother wrote the children one letter about five months before the hearing, .and saw them at a family funeral in May 1995.

Mother testified that the children barely knew her when they saw her at the funeral. Ms. Moss testified that the children have very little emotional attachment to Mother, and actually call B.D. their mother, although they know that Mother is their biological mother. Furthermore, Mother has not supported the children financially since they came into DFS custody in 1987. At the termination hearing, Mother testified that she was receiving public assistance, and had not held a job for more than thirty days in the previous ten years. Ms. Moss opined that terminating Mother’s parental rights would be in the children’s best interests. M.M. and O.M.’s guardian ad litem agreed.

The juvenile court terminated Mother’s parental rights pursuant to § 211.447.2,1 find[168]*168ing that such action was in the children’s best interests. It noted that since the children entered into DFS custody, “[Mother] has not corrected the conditions which led to the children’s removal [from her home], and she will not likely be able to do so within the foreseeable future.” It further found that “[Mother’s] history of unemployment, inadequate housing, inattention to her children and incarceration, together with her failure to consistently cooperate with the [DFS] to rectify these problems, make it unlikely that [Mother] could provide a stable and secure home at any time in the near future.” The juvenile court relied on several statutory bases for terminating Mother’s parental rights, including abandonment, § 211.447.2(1); adjudicated neglect or abuse, § 211.447.2(2); and the existence of juvenile court jurisdiction over the children for one year, coupled with the continued presence of conditions that would be potentially harmful to the children if they were returned to Mother’s care, § 211.447.2(3). Specifically, the trial court found that § 211.447.2(l)(b), (2)(d), (3)(a), and (3)(b) were applicable to the instant case.

The juvenile court may terminate the rights of a parent to a child if it finds that termination is in the child’s best interests, and when clear, cogent, and convincing evidence shows that one or more grounds for termination exist. § 211.447.2; In the Interest of M.H., 859 S.W.2d 888, 892 (Mo.App. S.D.1993). The existence of even one statutory ground for termination is sufficient if termination is in the child’s best interests. In Interest of E.B.S., 876 S.W.2d 8, 10 (Mo. App. S.D.1994). This court will affirm the juvenile court’s judgment unless no substantial evidence supports it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976); In the Interest of T.M.E., 874 S.W.2d 552, 559 (Mo. App. S.D.1994). Mindful that the juvenile court has a superior opportunity to assess the credibility of witnesses, we recognize that it is free to believe or disbelieve all, part, or none of the testimony of any witness. In the Interest of R.L.N., 886 S.W.2d 15, 19 (Mo. App. W.D.1994). When conflicting evidence has been received by the trial court, appellate courts shall review the facts in the light most favorable to the trial court’s order. In the Interest of M.E.W., 729 S.W.2d 194, 196 (Mo.banc 1987).

Mother raises three points on appeal. In her first, she argues that the juvenile court failed to make the factual findings required to terminate her parental [169]*169rights under § 211.447.2. She observes that subdivision (1) of § 211.447.2 contains two subparagraphs, (a) and (b), and that subdivisions (2) and (8) each contain four subpar-agraphs, (a) through (d). She then contends that the juvenile court’s findings of fact were insufficient to support the termination of her parental rights under § 211.447.2, because it did not make a specific finding as to the applicability of each subparagraph of § 211.447.2(1), (2), and (3).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Matter of MM
973 S.W.2d 165 (Missouri Court of Appeals, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
973 S.W.2d 165, 1998 Mo. App. LEXIS 1475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abbott-v-whitley-moctapp-1998.