In Re JVO

133 S.W.3d 570, 2004 WL 1079215
CourtMissouri Court of Appeals
DecidedMay 14, 2004
Docket25802
StatusPublished

This text of 133 S.W.3d 570 (In Re JVO) 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 JVO, 133 S.W.3d 570, 2004 WL 1079215 (Mo. Ct. App. 2004).

Opinion

133 S.W.3d 570 (2004)

In the Interest of J.V.O., a Minor.
New Madrid County Juvenile Office, Petitioner-Respondent,
v.
T.L.O., Respondent-Appellant.

No. 25802.

Missouri Court of Appeals, Southern District, Division One.

May 14, 2004.

Shawn D. Young, Portageville, for appellant.

Lynn N. Bock, New Madrid, or respondent.

PHILLIP R. GARRISON, Judge.

This appeal presents for our review the trial court's termination of the parental rights of T.L.O. ("Mother") as to her six-year-old daughter, J.V.O. ("Child") at the request of the juvenile office for New Madrid *571 County ("Respondent"). Mother contends in a single point that the trial court abused its discretion in determining that the best interests of Child were served by terminating Mother's parental rights because, she argues, the trial court misapplied the relevant factors provided by statute for making such determinations. We need not, however, decide Mother's point directly, for we are compelled, for reasons discussed below, to reverse the portion of the trial court's judgment terminating Mother's parental rights and remand the case for further proceedings in light of the Supreme Court of Missouri's holding in In the Interest of M.D.R., 124 S.W.3d 469 (Mo. banc 2004).

Our resolution of this case allows for a somewhat truncated recital of its lengthy factual background. Suffice it to note the following: Child was born November 23, 1997, the youngest of Mother's four children. Both Mother and Child are HIV positive, apparently as a result of Mother having been infected with the virus by Child's father, Demarkus Williams ("Father").[1] Shortly after birth, Child's "viral load"[2] was determined to be 550,000, which, according to medical testimony, was "pretty high." She was placed on a three-drug regimen and Mother was instructed in detail as to proper administration of those medications. By February 1998, however, Child's viral load had increased to 2,148,000, with a "CD4 count"[3] of 1397. This combination of results indicated to hospital staff that Child was not getting all of her medication. Doctors also were concerned with Child's height and weight, which consistently were measured at the twenty-fifth percentile for children her age.

In January 1998, the Missouri Department of Family Services ("DFS") investigated an allegation that Mother was abusing one of her other three children. While the charge went unsubstantiated, DFS remained in contact with Mother and her children thereafter and, on April 23, 1998, Mother informed her DFS social worker that she and Child were HIV positive.

In March 1999, Child's viral load was back up to 1,000,000 and she weighed between sixteen and nineteen pounds. On June 1, 1999, the care coordinator for the Missouri Department of Health ("MDH") contacted DFS with questions concerning whether Child was receiving her medications. On June 24, 1999, Child was admitted to Our Little Haven, a pediatric care facility affiliated with St. Louis Children's Hospital. In response to difficulty Child had swallowing a full dose of her medicine, the medical staff changed the regimen of drugs administered to her. By July 26, 1999, Child's viral load was down to 2350 and her CD4 had risen to 2047. According to medical testimony, these dramatic changes necessarily indicated that Mother had, again, not been properly giving Child her medications.

*572 The medical staff continued to monitor Child's viral load and CD4 count after she was returned to Mother's home. On February 28, 2000, her viral load was "out of control" at 360,000 and her CD4 count had dropped to 663. This was considered a life-threatening situation,[4] one that could only be explained if Mother was again failing to administer Child's drug regimen. A hotline call was placed to DFS and the next day Child was placed in foster care with James and Malinda Darter ("the Darters"), where she remains at present. Since Child has been with the Darters, her height and weight have risen to the ninetieth to ninety-fifth percentiles. Her viral loads have fluctuated between a low of 925 and a high of 40,000.[5]

The relationship between DFS and Mother was governed, in part, by a social services agreement with which Mother failed, in some respects, to comply. Specifically, she was described as "non-compliant" concerning a requirement that she participate in therapy sessions with a provided counselor, who stopped seeing Mother in August 2000 due to her lack of cooperation. Additionally, the service agreement required Mother to obtain medical treatment for her own HIV infection, which she resisted for some time. DFS records indicated that Mother was extremely ill on May 16, 2001, when she was described as so weak that "she couldn't even get up and walk." It was the concern of some DFS employees at the time that Mother might not "make it." Concerns also were expressed early in Mother's interaction with DFS about the unsanitary condition of Mother's home, with dirty dishes in the sink, food lying out, and clothes in the floor, although the record indicates that these concerns were allayed when Mother relocated to Sikeston, Missouri in June 2001, her health improved, and she was better able to maintain her house.

On February 14, 2003, Respondent filed a petition to terminate the parental rights of Mother and Father as to Child. As statutory grounds for terminating Mother's parental rights, Respondent alleged that Child had been in foster care for at least fifteen of the twenty-two months immediately preceding the filing of Respondent's petition (Section 211.447.2(1)),[6] that Mother had neglected Child (Section 211.447.4(2)), and that Child had been in the jurisdiction of the trial court for more than one year and the conditions that led to the assumption of said jurisdiction continued to exist and were unlikely to be rectified in the future—a so-called "failure to rectify" claim (Section 211.447.4(3)).

On April 8, 2003, the trial court appointed counsel for Mother and, on July 2, 2003, a hearing was held concerning Respondent's petition. On July 25, 2003, the trial court issued its judgment terminating the parental rights of Father and Mother as to Child, in which it found that grounds existed to terminate Mother's parental rights due to the fact that Child had been in foster care for at least fifteen of the preceding twenty-two months. The judgment was silent concerning the other two statutory bases for termination pled by Respondent in its petition. The trial court also found, based upon its consideration of the *573 relevant statutory factors, that to terminate Mother's parental rights was in the best interest of Child. This appeal follows. Other facts pertinent to our treatment of the case are described below.

In Mother's sole point, she contends the trial court abused its discretion in concluding that the termination of Mother's parental rights was in the best interest of Child. In so holding, the trial court considered the relevant factors for making such a determination under Section 211.447.6. Mother alleges, however, that "some of the trial court's findings with respect to these factors were either conclusory in nature or unsupported by the evidence." For example, according to Mother, the trial court "wholly failed to address the most critical consideration of whether Mother now is fully capable of administering... Child's medication for her HIV positive condition.

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New Madrid County Juvenile Office v. T.L.O.
133 S.W.3d 570 (Missouri Court of Appeals, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
133 S.W.3d 570, 2004 WL 1079215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jvo-moctapp-2004.