In Re NJS

276 S.W.3d 397, 2009 WL 234274
CourtMissouri Court of Appeals
DecidedFebruary 3, 2009
DocketED 90936
StatusPublished

This text of 276 S.W.3d 397 (In Re NJS) 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 NJS, 276 S.W.3d 397, 2009 WL 234274 (Mo. Ct. App. 2009).

Opinion

276 S.W.3d 397 (2009)

In the Interest of N.J.S. and A.D.S.

No. ED 90936.

Missouri Court of Appeals, Eastern District, Northern Division.

February 3, 2009.

*398 Mark D. Potts, Hannibal, MO, for Appellant.

Joseph A. Brannon, Andrew W. Briscoe, New London, MO, for Respondent Juvenile Officer.

Thomas R. Motley, Hannibal, MO, for Respondent Guardian Ad Litem.

OPINION

GLENN A. NORTON, Judge.

Mother appeals the judgments terminating her parental rights to N.J.S. and A.D.S.[1] We affirm.

I. BACKGROUND

Mother is the mother of N.J.S., a daughter born on April 13, 2007, and A.D.S., a son born on August 28, 2005. On June 7, 2007, N.J.S. was taken to the hospital to be treated for severe life threatening injuries. The extensive list of injuries included multiple bruises of the skin, skull fractures, impact injury to the substance of the brain (brain contusions), bruising of the lungs (pulmonary contusion), broken ribs, bleeding into the lining of the brain, midline shift of the brain to one side caused by brain swelling, liver laceration, and a pelvic bone fracture. N.J.S. and her brother A.D.S. were taken into the custody of the Children's Division on June 21.

Once the children were in the Division's custody, the juvenile court entered a judgment and order of disposition following a permanency hearing. After finding that N.J.S. was taken into custody in an emergency situation, the court explained that as of July 23, 2007, the Division was relieved of providing reasonable efforts toward reunification under section 211.183.7 RSMo 2000.[2]

The juvenile office filed petitions for termination of Mother's parental rights to N.J.S. and A.D.S. on August 20, 2007. *399 The petitions were based on section 211.447.4(2), which allows parental rights to be terminated where the child has been abused and neglected, and section 211.447.4(6), which allows parental rights to be terminated where the parent is unfit to be a party to the parent and child relationship. The petitions also alleged that termination of Mother's parental rights was in the best interests of the children.

At the hearing on the termination petitions, counsel for the juvenile office questioned Mother as to the cause of N.J.S.'s injuries. According to Mother, she left the children with her boyfriend, while she went to buy ice cream. When she returned, N.J.S. was "having seizures" so she called 911. Mother's boyfriend told her that N.J.S. was sitting in her car seat when A.D.S. tipped her over. She also thought A.D.S. may have injured N.J.S. by hitting her in the head with a plastic toy. Mother acknowledged that she no longer believed her boyfriend's story regarding how the injuries occurred, but maintained that she could not say what really happened since she was not there.

Robert Paschal, M.D., a pediatrician specializing in child abuse pediatrics, treated N.J.S. for her injuries. He testified about the nature and severity of the injuries, indicating that if they were left untreated, N.J.S. would have died. Dr. Paschal explained that N.J.S.'s injuries were caused by force sufficient enough that the person inflicting the injury would know it would likely result in severe injury. He stated that Mother and her boyfriend did not offer any plausible explanation as to the cause of N.J.S.'s injuries. He opined that, within a reasonable degree of medical certainty, N.J.S. was a victim of physical abuse. Finally, Dr. Paschal testified that he found evidence of an additional injury — a single healing rib fracture that was ten to fourteen days older than the injuries of June 6.

Other testimony at the hearing revealed that Mother's boyfriend was physically abusive toward Mother prior to June 7, 2007. Although Mother testified that her boyfriend was never violent in front of the children, Mother's cousin stated that Mother's boyfriend hit Mother in front of the children on at least one occasion. Mother continued her relationship with her boyfriend for at least two months after N.J.S. suffered injuries and the children were taken into custody.

Once the children were in custody, Mother attended almost all of her one-hour-per-week supervised visits before being incarcerated on criminal charges, including assault and theft. On one occasion, Mother asked if her boyfriend could accompany her. On another occasion, Mother left early after arguing with her father. Division workers testified that Mother got along well with her children, although she had difficulty managing both at the same time. Mother testified that she visited a counselor to help her cope with depression and stress. Although Mother brought clothes, toothbrushes and toys to the children when she came to visit, she did not provide any financial support even at times when she was working.

All representatives of the juvenile office testified that they recommended termination of Mother's parental rights. They based this determination on Mother's inability to provide a plausible explanation for N.J.S.'s life-threatening injuries while she was in Mother's care. They also noted that Mother continued her relationship with her boyfriend despite his alleged involvement in N.J.S.'s injuries and his otherwise abusive nature. Finally, they raised concern about Mother's incarceration since, by committing crimes preventing her from being able to provide for *400 their needs, Mother demonstrated she was unable to put her children first. The children's guardian ad litem agreed that termination of Mother's parental rights was in the best interest of the children. The juvenile court entered judgments terminating Mother's parental rights to N.J.S. and A.D.S.[3] Mother appeals.[4]

II. DISCUSSION

A. Standard of Review

We will affirm the juvenile court's judgment terminating a parent's parental rights unless no substantial evidence supports it, it is contrary to the weight of the evidence, or it erroneously declares or applies the law. In re P.L.O., 131 S.W.3d 782, 788-89 (Mo. banc 2004). We defer to the fact-findings of the juvenile court and consider all evidence and reasonable inferences in the light most favorable to the judgment. Id. at 789.

B. Clear, Cogent and Convincing Evidence Supports the Juvenile Court's Finding that Grounds Exist for Termination of Mother's Parental Rights Under Section 211.447.4(2)

Mother argues in her first point that the trial court erred in terminating her parental rights to N.J.S. and A.D.S. because there was no clear, cogent, and convincing evidence to support a finding that she abused or neglected the children under 211.447.4(2). Section 211.447.4(2) permits the juvenile court to terminate a parent's parental rights when clear, cogent and convincing evidence indicates that the child has been abused or neglected. See section 211.447.5 (permitting the juvenile court to terminate a parent's parental rights when it appears by clear, cogent and convincing evidence that grounds for termination under section 211.447.4 exist). "Clear, cogent and convincing evidence" is described as 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 re E.D.M., 126 S.W.3d 488, 492 (Mo.App.

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Related

Juvenile Officer v. L.L.J.
24 S.W.3d 771 (Missouri Court of Appeals, 2000)
Juvenile Officer, Missouri Division of Family Services v. E.L.M.
126 S.W.3d 488 (Missouri Court of Appeals, 2004)
In the Interest of P.L.O.
131 S.W.3d 782 (Supreme Court of Missouri, 2004)
In the Interest of K.A.W.
133 S.W.3d 1 (Supreme Court of Missouri, 2004)
State v. E.B.
178 S.W.3d 683 (Missouri Court of Appeals, 2005)
In the Interest of C.W.
211 S.W.3d 93 (Supreme Court of Missouri, 2007)
In the Interest of N.J.S.
276 S.W.3d 397 (Missouri Court of Appeals, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
276 S.W.3d 397, 2009 WL 234274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-njs-moctapp-2009.