E.M. v. S.M.

17 S.W.3d 912, 2000 Mo. App. LEXIS 848
CourtMissouri Court of Appeals
DecidedMay 30, 2000
DocketNo. 23049
StatusPublished
Cited by6 cases

This text of 17 S.W.3d 912 (E.M. v. S.M.) 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
E.M. v. S.M., 17 S.W.3d 912, 2000 Mo. App. LEXIS 848 (Mo. Ct. App. 2000).

Opinion

PHILLIP R. GARRISON, Chief Judge.

S.M. (“Mother”) appeals the judgment of the trial court terminating her parental rights with respect to her two minor children, A.B.M. and A.B.M. (collectively referred to - as “the children”). We affirm.

On May 14, 1996, E.M. (“Petitioner”), the paternal grandmother of the children, filed a petition to terminate the parental rights of Mother and a petition to adopt A.B.M., born August 29, 1989, and A.B.M, born July 29, 1991.1 In her petition to terminate Mother’s parental rights, Petitioner alleged that Mother’s parental rights should be terminated in accordance with the provisions of Sections 211.447 and 453.040.2 Specifically, Petitioner alleged:

That [Mother] ha[d] abandoned the [children] in that [Mother] intentionally murdered the biological father, which resulted in the disintegration of the family unit and left the [children] without even a modicum.of parental nurturing during her incarceration.. Further that [Mother] knew of the probable devastating effect of her actions on the [children] and of the inevitable lengthy separation from her as a consequence of her incarceration. Further, that the crime itself creates an irreparable emotional estrangement of the children from [Mother], Further, that her sentence will result in a physical separation during all the [children’s] formative years.

On November 18, 1998, the trial court held a hearing on the petition. At the hearing, evidence was introduced of Mother’s role in the murder of the children’s natural father, R.M., in May 1994, and of her subsequent conviction for second-degree murder and fifteen-year sentence.3

At the hearing, Petitioner testified that initially, during Mother’s pending trial and subsequent incarceration, her custody of the children was made with the consent and at the direction of Mother. Petitioner further noted that at the time Petitioner obtained custody of the minor children [915]*915there was no agreement that she would not attempt to terminate Mother’s parental rights or obtain permanent custody.

Petitioner also testified that she had not allowed in-person and telephone visitation between the children and Mother based upon the advice of the children’s counselor. Petitioner stated that she had allowed the children to foster a relationship with their maternal grandparents. Petitioner further testified that the Mother had provided no financial support for the children, but confirmed that the children received $778 each in monthly social security benefits.

At the hearing, Mother testified that she had enrolled in the PATCH program, Parents and Their Children, offered by the Missouri Department of Corrections, and regularly attended parenting classed designed to help inmates maintain their parent-child relationship while incarcerated. She stated her desire to visit her children, and testified that she had sent the children cards, birthday and Christmas presents, and had tried to call the children collect several times. Evidence was presented showing that the children did correspond with Mother by mail, playing tic-tac-toe and tracing their hands and feet to show their growth.

The trial court entered its Findings of Fact and Conclusions of Law on April 12, 1999, whereby it terminated Mother’s parental rights. The trial court entered its revised findings on May 10, 1999. In its revised findings, the trial court based the termination on three grounds: Section 211.447.4(1), abandonment; Section 211.447.4(2), neglect; and Section 211.447.4(3), the existence of trial court jurisdiction over the children for a period of one year coupled with findings that the “conditions which led to the [trial court’s] 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 children] can be returned to [Mother] in the near future,” and that “the continuation of the parent-child relationship greatly diminishes the child[ren]’s prospects for early integration into a stable and permanent home.” The trial court held that the best interests of the children would be served through the termination of Mother’s parental rights. It further found that Petitioner was a suitable adoptive parent.

In her three points on appeal, Mother challenges the sufficiency of the evidence supporting the trial court’s order regarding the following findings that: (1) Mother willfully abandoned the children; (2) Mother willfully neglected the children; and (3) it was in children’s best interests that Mother’s parental rights be terminated.

This court will affirm an order terminating parental rights 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. Matter of MM., 973 S.W.2d 165, 168 (Mo.App. S.D. 1998). In reviewing the sufficiency of the evidence supporting an order, this court considers the evidence and all reasonable inferences in the light most favorable to the order. In Interest of M.N.M., 906 S.W.2d 876, 878 (Mo.App. S.D.1995). Further, due regard is given to the trial court’s opportunity to judge the credibility of witnesses. In Interest of M.H., 859 S.W.2d 888, 892 (Mo.App. S.D.1993). We will reverse the order only when we firmly believe it is wrong. Id. In any termination of parental rights, the primary concern must be the best interests of the child. M.N.M., 906 S.W.2d at 878.

Mother first contends that the trial court erred in terminating her parental rights pursuant to Section 211.447.4(l)(b) because the Petitioner failed to establish by clear, cogent and convincing evidence that Mother had willfully abandoned the children.

Abandonment has been defined by the courts as “the intentional withholding by a parent of his care, love, protection and presence without just cause or [916]*916excuse.” In re R.K., 982 S.W.2d 803, 806 (Mo.App. W.D.1998). Abandonment' focuses on the parent’s intent, taking into consideration all evidence of the parent's conduct before and after the applicable statutory period. Z.H. v. G.H., 5 S.W.3d 567, 570 (Mo.App. W.D.1999).

In the instant case, the trial court found, in accordance with Section 211.447.4(l)(b), that Mother had willfully abandoned the children for more than six months, and had, without just cause or excuse, withheld from them her presence, care, protection, maintenance and the realistic opportunity for love and filial affection “when on or about May 19, 1994 she participated in the murder of their father, [R.M.], knowing that such a crime would separate her from the children leaving them without any provision for parental support and without making arrangements to visit or communicate with the children although able to do so.” The trial court further found that Mother “destroy[ed] the family unit, and with the knowledge that the crime itself would create an irreparable emotional estrangement of the children from her and the natural father.”

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Cite This Page — Counsel Stack

Bluebook (online)
17 S.W.3d 912, 2000 Mo. App. LEXIS 848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/em-v-sm-moctapp-2000.