In re C.M.E.

724 S.W.2d 289, 1987 Mo. App. LEXIS 3535
CourtMissouri Court of Appeals
DecidedJanuary 26, 1987
DocketNo. 14768
StatusPublished

This text of 724 S.W.2d 289 (In re C.M.E.) 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 C.M.E., 724 S.W.2d 289, 1987 Mo. App. LEXIS 3535 (Mo. Ct. App. 1987).

Opinion

MAUS, Judge.

By its judgment, the trial court terminated the parental rights of L.E. as legal father, and M.S. and L.H. as reported fathers to C.M.E., a male born October 30, 1972. It terminated the parental rights of L.E. as legal father and H.B. as reported father to J.E.E., a male bom March 24, 1974. It terminated the rights of H.B. as legal and reported father of A.D.B., a male born December 8, 1975. It also terminated the parental rights of M.E.S., II as legal and reported father of M.E.S., III, a male born October 3, 1977. Finally, that judgment terminated the parental rights of L.S. as mother of all four of those minor children. § 211.477. Only the mother appeals.

The petition alleged the parental rights of the mother should be terminated upon three of the grounds for termination set forth in § 211.447 before its amendment by L.1985, H.B. Nos. 366, 248, 372 & 393 A. The amendatory act expressly provides that in any action for termination of parental rights pending prior to September 28, 1985, the law in effect at the time of the filing of the petition shall govern. § 211.-487.2. The petition in this case was filed on September 4, 1985. The parties have submitted the case to be decided under § 211.-447 prior to the aforesaid amendment. It will be so considered.

As bases for the termination of the parental rights of the mother the petition alleged the following: neglect as set forth in § 211.447.2(2)(b); failure to support as set forth in § 211.447.2(2)(f); and failure to rectify the conditions which formed the basis for the petition and order by which the juvenile court originally assumed jurisdiction of the children as set forth in § 211.-447.2(2)(i). The trial court found each of these bases to be established by clear, cogent and convincing evidence.

By her first point, the mother contends the evidence is insufficient to establish any basis for termination. It is not necessary to determine if the evidence is sufficient to establish all of the alleged bases for termination. The judgment of termination will be upheld if the evidence is sufficient to establish any one of the alleged bases. In Interest of JIW, 695 S.W.2d 513 (Mo.App.1985); In Interest of D.M.J., 683 S.W.2d 313 (Mo.App.1984).

The evidence centered upon the allegation that the mother, contrary to § 211.-447.2(2)(i), failed to rectify the conditions which formed the basis for the petition and order by which the juvenile court originally [291]*291assumed jurisdiction of the children. To support her point in respect to this basis the mother first argues the juvenile court assumed jurisdiction of the children because she stated she could not care for them and the family was being evicted from a dirty home. She then argues the trial court’s finding in respect to this basis is unsupported because there was no evidence those conditions have not been rectified.

The mother’s argument demonstrates she does not consider all of the evidence and misconceives the nature of the relevant unrectified condition. Evidence concerning that condition included the following. In 1980, the mother and M.E.S., II, lived in Kansas. They were arrested for abuse of the children. Under some type of a counseling program, they were released. The children were placed with the maternal grandmother for a period of time. In 1982 or 1983, the mother and M.E.S., II, lived in New Mexico. While in New Mexico, M.E.S., II, was arrested for sexual abuse of two of the children. The mother returned to Missouri. Following her return, in July, 1983, she told the juvenile officer she couid not care for the children. They have been in foster care since that time.

The evidence and the petition of the juvenile officer established the juvenile court assumed jurisdiction of these children because of the condition of the inability of the mother to provide a stable home for them. Or as stated, “[t]he condition for that exercise of juvenile court jurisdiction, as we note, was the neglect of the mother [and other parent] to provide for the care, custody and support of the children.” D.E.J. v. G.H.B., 631 S.W.2d 113, 119 (Mo.App.1982) (emphasis in original). Cf. In Interest of D.M.J., supra, and In Interest of D_ V_ V_, 677 S.W.2d 396 (Mo.App.1984).

Following the removal of the children, the mother resumed living for an extended period of time with M.E.S., II, who had returned to Missouri. For seven months she worked at a dormitory cafeteria in Rol-la. She terminated her employment for a reason that is not clear from the record. She then worked at a nursing home in St. James. She quit because her “ride” quit and she supposedly “hurt her back.” There was evidence that at one time she had an automobile. Nonetheless, after the children were removed from her custody, the mother made no financial contribution to the support of the children.

She entered into 11 different service plans with the Division of Family Services. She performed none. The Division of Family Services provided her with psychological counseling. She participated for a time, but then withdrew because she determined and declared she had no problems. The mother declined to receive occupational training.

In March, 1985, the Division of Family Services advised the mother that if she did not, by July, 1985, provide a home for the children, a petition to terminate her parental rights would be filed. She responded by moving to Dixon with one R.B., a man with whom she had been living. They later moved to Lenox. In July, 1985, they moved to Licking. She was thereafter divorced from M.E.S., II. After the mother moved to Licking with R.B., R.B. was arrested for driving while intoxicated. Thereafter, one Pam, who drew some form of Social Security payments, lived with the mother. Pam was arrested for stealing. The employer of former husband, M.E.S., II, testified that during January, 1986, he picked up M.E.S., II, for work several mornings at the home of the mother. Thereafter, the mother moved to a small mobile home near Licking. She lived there at the time of the hearing. At that time she was employed ten hours per week as a motel maid.

As noted, the mother contends this evidence is insufficient because there was no evidence the small mobile home was dirty; and she said she could care for the children. She also tendered excuses for her many moves, for living with R.B. to whom she was not married, and for her failure to maintain regular employment. Despite the evidence to the contrary, she denied she had resumed living with M.E.S., II, while she was in Licking.

[292]*292It is within the “prerogative of the trial court to determine the credibility of the witness and accept or reject testimony.” In Interest of JIW, supra, at 516. A corollary rule that seems particularly applicable to termination cases has been stated as follows. “On appeal of a court-tried case, the appellate court defers to the trial court on factual issues because it is in a better position not only to judge the credibility of witnesses and the persons directly, but also their sincerity and character and other trial intangibles which may not be completely revealed by the record.” In re Adoption of W.B.L., 681 S.W.2d 452

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In Re Adoption of W.B.L.
681 S.W.2d 452 (Supreme Court of Missouri, 1984)
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637 S.W.2d 670 (Supreme Court of Missouri, 1982)
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712 S.W.2d 398 (Missouri Court of Appeals, 1986)
In the Interest of D.E.J. v. G.H.B.
631 S.W.2d 113 (Missouri Court of Appeals, 1982)
Livingston v. V.L.D.
663 S.W.2d 426 (Missouri Court of Appeals, 1983)
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Bluebook (online)
724 S.W.2d 289, 1987 Mo. App. LEXIS 3535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cme-moctapp-1987.