In Re BSW

108 S.W.3d 36, 2003 WL 1090646
CourtMissouri Court of Appeals
DecidedMarch 13, 2003
Docket24778, 24779, 24780, 25018
StatusPublished

This text of 108 S.W.3d 36 (In Re BSW) 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 Re BSW, 108 S.W.3d 36, 2003 WL 1090646 (Mo. Ct. App. 2003).

Opinion

108 S.W.3d 36 (2003)

In the Interest of B.S.W., B.R.W. and B.J.W., children under seventeen years of age.
M.W. and R.A.A., Appellants,
v.
Greene County Juvenile Office, Respondent.

Nos. 24778, 24779, 24780, 25018.

Missouri Court of Appeals, Southern District, Division Two.

March 13, 2003.
Petition for Rehearing and Transfer Denied April 4, 2003.

*38 Christopher A. Hazelrigg, Hazelrigg, Roberts & Easley, P.C., Springfield, for appellants.

Bill Prince, Greene County Juvenile Office, Springfield, for respondent.

JAMES K. PREWITT, Presiding Judge.

In this consolidated appeal, M.W. ("Mother") appeals from judgments terminating her parental rights to B.S.W., born September 18, 1990, B.R.W., born May 28, 1993, and B.J.W., born December 4, 1991, and R.A.A. ("Father") appeals from a judgment terminating his parental rights to B.S.W. The rights of B.R.W.'s alleged biological father are not at issue in this appeal and B.J.W.'s alleged biological father voluntarily terminated his parental rights in an earlier proceeding. With two points relied on, Mother contends that the trial court's "delay" in entering its judgment shows that it was not persuaded by the evidence and that there was not clear, cogent, and convincing evidence presented in support of several of the findings related to the grounds for termination of her parental rights under § 211.447.2, RSMo Supp.1998. Father raises one point on appeal in which he attacks several findings of the trial court, arguing that there was insufficient evidence for the trial court to find them clearly, cogently, and convincingly, and contends that therefore, the trial court erred in its determination that the termination was in the best interest of his child, B.S.W.

All three children have been under the care and custody of the Juvenile Court of Greene County and in the temporary custody of the Missouri Division of Family Services ("DFS") since October 1995 when the police found B.S.W. wandering along Glenstone Avenue in Springfield, Missouri, *39 wearing only her pajamas. The police had been called after a motorist witnessed the child run across the street and nearly hit her.

Based on the incident itself and unsanitary living conditions, which included the presence of dog feces and urine, the two children who were in the home, B.S.W. and B.J.W., were taken into protective custody that day. It was determined the next day that they both had severe cases of head lice. The remaining child, B.R.W., was taken into protective custody a day or so later, after it was found that he was staying temporarily with his father. DFS's investigation of the incident included a statement that Mother had not improved her lifestyle, as she had an "extensive history" with DFS under which she had received prior services from DFS based on concerns relating to inappropriate caretakers, lack of supervision of her children, and unsanitary conditions of her household and the children. All three children were adjudicated neglected, and the trial court took judicial notice of that case.

At the time of the incident, Father was incarcerated for crimes involving malicious wounding and sexual assault in West Virginia. Although he was released in December 1996, Father apparently did not immediately return to Greene County. The first treatment plan for him was in May 1998.

On February 2, 1999, petitions to terminate the parental rights of Mother and Father with respect to B.S.W., and Mother with respect to B.R.W. and B.J.W., were filed. Within all three petitions, DFS sought termination of Mother's and Father's rights based on § 211.447.2(1), RSMo Supp.1998, (children had been in foster care for at least fifteen of the last twenty-two months); § 211.447.4(2), RSMo Supp.1998, (children had been abused or neglected); and § 211.447.4(3), RSMo Supp.1998, (children had been under the trial court's jurisdiction for a period of one year, and conditions leading to the assumption of that jurisdiction still exist or conditions of a potentially harmful nature continue to exist).

The hearing on the petitions was held in May 2000, and on January 25, 2002, the trial court entered a judgment terminating Mother's and Father's parental rights to B.S.W., and separate judgments terminating Mother's parental rights to B.R.W. and B.S.W., respectively. Considering the judgment terminating Mother's and Father's rights to B.S.W., the trial court found the following statutory grounds existed for termination:

a. [B.S.W.] has been in care fifteen of the most recent twenty[-]two months.

b. [B.S.W.] has been abandoned by the unknown biological father [not Father].

c. [B.S.W.] has been abused and neglected and adjudicated neglected.... There has been a repeated and continuous failure by the parents, although physically and financially able, to provide [B.S.W.] with adequate food, clothing, shelter or education as defined by law, or other care necessary for the child's physical, mental or emotional health and development. That [B.S.W.] and siblings have been subjected to physical, sexual and emotional abuse while in the care, custody and control of the parents and under circumstances that indicated that the parents knew or should have known of such abuse.

d. That [B.S.W.] has been under the jurisdiction of the [trial] court for a period in excess of one year and the conditions leading to the assumption *40 of jurisdiction by the [c]ourt continue to exist.

The trial court made findings regarding the following factors from § 211.447.6, RSMo Supp.1998:

a. The emotional ties to the birth parent. The evidence indicated that [B.S.W.] had emotional ties to [Mother] and [Father].

b. The extent to which the parents maintained regular visitation or other contact with the minor child. [Mother] and [Father] maintained consistent visitation with [B.S.W.].

c. The extent of payment by the parent[s] for the cost of care and maintenance of the minor child, when financially able to do so including the time that the minor child was in the custody of [DFS] or other child-placing agency. There was no evidence presented that [Father] provided regular or consistent support for [B.S.W.]. [Mother] provided financial and in-kind support for [B.S.W.].

d. Whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent[s] within an ascertainable amount of time. The [DFS caseworker] testified that there are no possible services available that would bring about lasting parental adjustment enabling the return of [B.S.W.] to a parent within an ascertainable period of time. The [caseworker] testified that in the almost five years [B.S.W.] has been in care, every service available to aid the family was offered to the family.

e. [Father has] shown a disinterest in, and lack of commitment to, [B.S.W.]. [Mother] has been involved during the time [B.S.W.] was in care.

f. The conviction of a parent of a felony offense that the court finds is of such a nature that the children will be deprived of a stable home for a period of years. There was no evidence presented on this factor.

g. Deliberate acts of the parent or acts of another of which the parent knew that subjects the child to a substantial risk of physical or mental harm. Evidence was presented that [B.S.W.] and siblings ... were subjected to such acts while in the care, custody and control of [Mother].

Based on the factors, the trial court concluded that terminating both Mother's and Father's parental rights would be in the best interest of B.S.W.

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Bluebook (online)
108 S.W.3d 36, 2003 WL 1090646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bsw-moctapp-2003.