In Interest of WSM

845 S.W.2d 147, 1993 WL 6994
CourtMissouri Court of Appeals
DecidedJanuary 19, 1993
DocketWD 45774
StatusPublished
Cited by3 cases

This text of 845 S.W.2d 147 (In Interest of WSM) 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
In Interest of WSM, 845 S.W.2d 147, 1993 WL 6994 (Mo. Ct. App. 1993).

Opinion

845 S.W.2d 147 (1993)

In the Interest of W.S.M., a minor.
JUVENILE OFFICER, Respondent,
v.
W.M., Natural Father and D.M., Natural Mother, Appellants.

No. WD 45774.

Missouri Court of Appeals, Western District.

January 19, 1993.

*149 Gabriel A. Domjan, Independence, for appellants.

Dane C. Miller and Lance A. Riddle, Warrensburg, for respondent.

Before BRECKENRIDGE, P.J., and SHANGLER and SPINDEN, JJ.

SPINDEN, Judge.

D.M., mother, and W.M., father, appeal the trial court's termination of their parental rights to their son, W.S.M. They contend that clear, cogent and convincing evidence did not support termination. They also complain that the court's order did not recite facts supporting the grounds for termination or that termination was in W.S.M.'s best interest, and that the trial judge erroneously factored into his determination the foster parents' bonding to W.S.M. and their willingness to adopt him. D.M. and W.M. also assert that the trial judge should have disqualified himself from presiding over the termination hearing and that they received ineffective assistance of counsel.[1] We affirm the trial court's determination that grounds existed to terminate D.M.'s and W.M.'s parental rights pursuant to § 211.447.2(3), RSMo Supp.1991, but we remand for the court to enter findings regarding W.S.M.'s best interests.

W.S.M. was born on February 20, 1988. He was 15 months old when the Johnson County Juvenile Office filed a petition asking the trial court to take jurisdiction of him. The petition alleged that W.S.M. needed care and treatment and the house provided by W.S.M.'s parents "was filthy with animal feces; had rotting food on kitchen counters and in the refrigerator; had trash and dirty clothing piled within that home; and that these conditions continued to exist despite previous efforts by the Division of Family Services, Juvenile Officer, and Parent Aid Program of Johnson County, Missouri, to assist." The petition also alleged that D.M. failed to obtain proper medical attention for W.S.M.

On May 10, 1989, the trial court took jurisdiction of W.S.M. and found that his removal from the home was necessary because the parents failed to provide needed medical attention, the parental home was not suitable, and the parents failed to cooperate with Division of Family Services (DFS). The court put W.S.M. in the custody of DFS for placement in foster care.

On July 26, 1991, the juvenile office filed a petition to terminate the parental rights of D.M. and W.M. The petition stated that termination was being sought pursuant to § 211.447.2(3) and alleged that the child had been under the jurisdiction of the juvenile court for a period of one year and that conditions of a potentially harmful nature continued to exist and that there was little likelihood that those conditions would be remedied at an early date so that the child could be returned to his parents in the near future.

On November 26, 1991, the court held a termination hearing. On December 12, 1991, the court ruled that the allegations contained in the termination petition were *150 true and terminated the parental rights of D.M. and W.M. pursuant to § 211.447.

This court should affirm this decision to terminate parental rights if the record contains substantial evidence supporting the decision and is not against the weight of the evidence, and the trial court has properly declared and applied the law. In reviewing the trial court's decision, we view the evidence and its reasonable inferences in a light most favorable to the decision. In Interest of Y.M.H., 817 S.W.2d 279, 282 (Mo.App.1991). We must be extremely cautious in considering the setting aside of a judgment on the ground that it is against the weight of the evidence. We should do so only if we have a firm belief that the judgment is wrong. In Interest of G.C.P., 680 S.W.2d 429, 430 (Mo.App.1984).

An order terminating parental rights must be supported by clear, cogent and convincing evidence that one of the grounds for termination under § 211.447 exists and that termination of parental rights is in the child's best interest. In Interest of Y.M.H., 817 S.W.2d at 282. "Clear, cogent and convincing evidence in an action for termination of parental rights 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." In Interest of J.M., 815 S.W.2d 97, 101 (Mo.App.1991).

The parents in this case contend that the evidence does not support the trial court's order. They argue that the evidence established that the problems D.M. and W.M. were having when the court removed W.S.M. from their home—unsanitary, substandard housing—had improved by the time of the termination hearing, so the trial court had no basis for concluding under § 211.447.2(3) that the problems were continuing.

Continuation of the problems which caused the court to exercise jurisdiction is but one of the conditions on which termination of parental rights can be based under § 211.447.2(3). That statute authorizes termination if:

The child has been under the jurisdiction of the juvenile court for a period of one year, and the court finds that the conditions which led to the 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 child can be returned to the parent in the near future, or the continuation of the parent-child relationship greatly diminishes the child's prospects for early integration into a stable and permanent home.

The trial court heard clear, cogent and convincing evidence that "conditions of a potentially harmful nature continue to exist." The trial court found:

[T]he biological father continues to encounter employment problems and legal problems that prevent stability from existing in the home[.] [T]he mother's borderline intellectual functioning and dependence upon others cannot be overcome in the foreseeable future[.]
....
... The biological mother has failed to comply with the terms of the numerous Written Service Agreements prepared over the extensive period of time the minor child has been in Division of Family Services custody. Psychological evaluation of the biological mother reveal [sic] that she has a significant psychological problem which renders proper care and support for the juvenile by her impossible.
... The biological father has further failed to comply with the terms of the numerous Written Service Agreements prepared over the period of time this case has been pending. Psychological evaluation of the biological father reveals that he has a significant psychological problem which renders proper care and support for the juvenile by the father highly unlikely.

Supporting these findings was evidence that a psychologist's testing had established that D.M. could function as a parent only with "considerable supervision" because of deficiencies in her intelligence and *151 the personality disorders she suffered. His testing established that W.M.

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Bluebook (online)
845 S.W.2d 147, 1993 WL 6994, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-interest-of-wsm-moctapp-1993.