In Re DMB

178 S.W.3d 683, 2005 WL 2741438
CourtMissouri Court of Appeals
DecidedOctober 25, 2005
Docket26686
StatusPublished

This text of 178 S.W.3d 683 (In Re DMB) 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 DMB, 178 S.W.3d 683, 2005 WL 2741438 (Mo. Ct. App. 2005).

Opinion

178 S.W.3d 683 (2005)

In the Interest of D.M.B., a child under seventeen years of age.
State of Missouri, Greene County Juvenile Office, Petitioner-Respondent,
v.
E.B., Respondent-Appellant.

No. 26686.

Missouri Court of Appeals, Southern District, Division Two.

October 25, 2005.
Motion for Transfer Denied November 16, 2005.
Application for Transfer Denied December 20, 2005.

*685 John E. Kelly, Springfield, for appellant.

Bill Prince, Springfield, for respondent.

PHILLIP R. GARRISON, Judge.

E.B. ("Mother"), appeals the termination of her parental rights to her biological son, D.M.B., by the Greene County Juvenile Court (the "Juvenile Court"). On appeal, Mother challenges the sufficiency of the evidence to support the Juvenile Court's ruling. We affirm.

D.M.B., born February 6, 1993, was living with his natural father, M.A.B, ("Father") when he was taken into protective custody on October 23, 2002, following a disclosure by D.M.B.'s sister, A.B., that both she and D.M.B. had been sexually abused by several people living in Father's *686 apartment in Greene County, Missouri.[1] At the time of the abuse, A.B. was living with Father's parents as a temporary relative placement by the Missouri Children's Division ("Division"), and was only visiting Father and D.M.B. Sometime after the abuse, Father and D.M.B. moved in with Father's parents and were living there when D.M.B. was removed and placed into protective custody.

Mother was living in Joplin, Missouri, when D.M.B. was placed in protective custody. The Division of Family Services ("DFS") did not place D.M.B. with her for at least two reasons: she had failed to cooperate with the Division or otherwise take the steps necessary to regain custody of A.B. after she had been placed in foster care as a result of neglect by Mother and Father, a fact which led to the Juvenile Court terminating Mother's parental rights to A.B. on December 4, 2002; and Mother had been diagnosed with bipolar disorder.

On October 23, 2002, a petition alleging neglect and abuse was filed by the Greene County Juvenile Office ("Juvenile Office") and a hearing was held, at which time the Juvenile Court found the allegations contained in the petition to be true and D.M.B. was placed in the custody of DFS. On June 6, 2003, following a home study, D.M.B. was placed with his fraternal aunt, Amy Buer, ("Aunt") then residing in Fort Scott, Kansas.

On July 21, 2003, the Juvenile Office filed a petition to terminate the parental rights of both parents as to D.M.B. pursuant to Section 211.447.[2] Hearings were held on May 3, 2004, and June 28, 2004, at which evidence was presented on the petition. The Juvenile Court took judicial notice of four separate juvenile case files involving D.M.B. and A.B. ranging from 2000 to 2003, including the involuntary termination of Mother's parental rights to A.B. On June 30, 2004, the Juvenile Court determined that the allegations of the petition were true based upon the evidence presented and that a judgment terminating the parental rights was in the best interest of D.M.B. On October 21, 2004, it entered its written findings of fact, conclusions of law, and judgment and order terminating the parental rights of Mother and Father. Mother now appeals.[3]

Mother relies on five points of error on this appeal. In Point I, Mother argues that the Juvenile Court's finding that termination of her parental rights was in the child's best interests was against the weight of the evidence. In Points II through V, Mother challenges the sufficiency of the evidence with regard to the Juvenile Court's grounds for termination.

The Juvenile Court terminated Mother's rights on two grounds: the child had been abused and neglected as provided in Section 211.447.4(2); and Mother was presumptively unfit, as provided in Section 211.447.4(6). "Where multiple statutory grounds for termination of parental rights are found, in order to affirm the judgment, the appellate court need only find that one of the statutory bases was proven and that the termination was in the best interest of the child." In re N.L.B., 145 S.W.3d 902, 906 (Mo.App. S.D.2004); see also In re E.L.B., 103 S.W.3d 774, 776 (Mo. banc 2003). We find that the trial court's determination that Mother is presumptively unfit to be a party to the parent-child relationship *687 under Section 211.447.4(6) was supported by sufficient evidence and that the Juvenile Court did not abuse its discretion in finding that the termination was in D.M.B.'s best interest. We therefore decline to address Mother's remaining points.[4]

Appellate courts "will affirm the trial court's decision to terminate parental rights unless the `record contains no substantial evidence to support the decision, the decision is against the weight of the evidence, or the trial court erroneously declares or applies the law.'" In re S.M.H., 160 S.W.3d 355, 362 (Mo. banc 2005) (quoting Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)); In re T.A.S., 32 S.W.3d 804, 808 (Mo.App. W.D. 2000). In essence this means that in order to reverse we must be "left with the firm belief that the order was wrong." In re S.M.H., 160 S.W.3d at 362. We view the evidence in the light most favorable to the Juvenile Court's judgment. In re J.B.D., 151 S.W.3d 885, 887 (Mo.App. S.D.2004). When conducting this review we also keep in mind that the Juvenile Court was in a better position to judge the credibility of the witnesses and was free to believe or disbelieve all, part or none of the witnesses' testimony. In re N.L.B., 145 S.W.3d at 906.

Termination of parental rights is governed by Section 211.447. In particular, subsection 5 provides:

The juvenile court may terminate the rights of a parent to a child upon a petition filed by the juvenile officer or the division, or in adoption cases, by a prospective parent, if the court finds that the termination is in the best interest of the child and when it appears by clear, cogent and convincing evidence that grounds exist for termination pursuant to subsection 2, 3 or 4 of this section.

Section 211.447.5. This subsection sets out a two-step process which the Juvenile Court must follow in terminating parental rights. It must first determine that "grounds exist for termination under [S]ection 211.447." In re N.L.B., 145 S.W.3d at 906. If sufficient grounds are found the court must then determine that termination of the parental rights is in the child's best interest. Id. The grounds for termination must be proven by clear, cogent and convincing evidence, which means that which "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 re K.A.W., 133 S.W.3d 1, 12 (Mo. banc 2004).

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Bluebook (online)
178 S.W.3d 683, 2005 WL 2741438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dmb-moctapp-2005.