In re Of

560 S.W.3d 906
CourtMissouri Court of Appeals
DecidedNovember 6, 2018
DocketED 106532
StatusPublished
Cited by3 cases

This text of 560 S.W.3d 906 (In re Of) 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 Of, 560 S.W.3d 906 (Mo. Ct. App. 2018).

Opinion

Gary M. Gaertner, Jr., Judge

Introduction

C.N.N. (Mother) appeals the trial court's judgment terminating her parental rights to her two minor children, J.L.D. and I.N.D. While almost all termination of parental rights (TPR) cases are sad, here we face a situation in which either outcome is unfortunate for Mother, the children, or both. This is because the trial court terminated Mother's parental rights at a point in time when Mother had not been permitted to see her children for nearly two years, and the children's bond to their mother had understandably waned, leaving them strongly desiring to stay with their foster parents. At the same time, while Mother made substantial progress toward the objectives of her service plan, she was a poor woman, dealing with domestic violence, who had trouble securing her own stable housing and employment. Given the lack of the children's bond to their Mother, reinstating visits and potentially returning them to her custody in the future is difficult. However, given Mother's progress toward changing her circumstances and improving herself, it is also difficult to see what more Mother should or could have done besides simply doing it more quickly, and termination of parental rights is never something this Court or any Missouri court takes lightly.

The statute governing termination of parental rights, Section 211.447,1 requires consideration of both the parent's progress toward eliminating a harmful situation and the child's best interests. However, the statute first requires the trial court to find a ground for termination, which focuses on the conduct of the parent, before the statute requires the trial court to consider the best interests of the child. Section 211.447.7; In re N.R.W., 112 S.W.3d 465, 468 (Mo. App. W.D. 2003) (TPR is "two-step analysis ... if (and only if) grounds for termination exist, the trial court must determine whether [TPR] is in the child's best interest").

While certainly the impact on the children of any decision regarding their custody is of utmost importance, and in fact the grounds for a TPR require foremost consideration of the children's safety, Missouri's legislature and its courts have made clear that the parent-child relationship deserves fundamental protection, and we should seldom, if ever, terminate that parent-child relationship, especially where a parent has made progress, albeit imperfect, toward improving that relationship and creating a safer environment for their children. In re S.M.H., 160 S.W.3d 355, 368-69 (Mo. banc 2005) ("The issue is *909whether progress has been made in complying with the service agreements, not whether there has been full or substantial compliance"). The primary issue is not whether the children would have more care and opportunity in another home (if this was the standard, many children who are not abused would be justifiably removed from their homes), but whether the parent-child relationship is potentially harmful in the ways that led the trial court to take jurisdiction over the children. See In re B.S.B., 76 S.W.3d 318, 335-36 (Mo. App. W.D. 2002) ("The issue is not whether the children would be better off in another home. Although the primary concern is always the best interests of the children, before the court can reach the issue of children's best interests, there must be sufficient proof of acts authorizing termination under the statutes" (citation and quotation omitted) ); see also In re K.A.W., 133 S.W.3d 1, 9-10 (Mo. banc 2004) (past behavior must be linked to likelihood of future harm).

Considering this structure of the law in Missouri, along with the full record here, though we acknowledge the long road ahead and the hardship non-termination could place on these two children in the future should Mother and the children not receive therapeutic support to repair the parent-child relationship, we cannot say that substantial evidence supported the trial court's finding of clear, cogent, and convincing evidence of a ground for termination that instantly tilted the scales in favor of termination. See K.A.W., 133 S.W.3d at 12. We reverse and remand.

Background

In February of 2016, the Juvenile Officer of St. Louis County filed a petition to terminate the parental rights of Mother2 to J.L.D. (J.D.), who was ten years old at the time of filing, and I.L.D. (I.D.), who was nine years old (collectively, "the children"). On July 21, 2014, the trial court adjudicated the children abused and neglected, and since then, the children have been under the jurisdiction of the court. That adjudication arose from an incident in which the children's older siblings had gotten into a physically violent altercation with the children's father, M.D. (Father).

Since that time, the children have been together in the same foster care placement. Mother entered a written service agreement with Children's Division, which initially had the goal of reunification. The plan provided supervised visits twice per month, and Mother agreed to make voluntary financial contributions toward the children's support, participate in a parenting assessment, attend counseling as directed by Children's Division, and maintain adequate housing.

Mother participated in a psychological evaluation and parenting assessment with Dr. Lisa Emmenegger in October and November of 2014, Dr. Emmenegger diagnosed Appellant with an unspecified personality disorder, relationship stress with an intimate partner, a parent-child relationship problem, partner violence, and ruled out perpetrator partner violence. Dr. Emmenegger recommended Mother see a different therapist than Father, and that Mother participate in domestic violence and parenting classes. Mother participated in individual therapy with Dr. Renee Smola until April of 2015, when Dr. Smola discharged Mother after completing domestic violence education and prevention. In the spring of 2016, Mother also obtained *910a certificate of completion for a Family Strength class from ROW, a program that educates women on budgeting and parenting. Mother also completed a financial education class through REAP, and domestic violence class through the YMCA. Mother resumed individual therapy in August of 2016, but Dr. Smola terminated therapy in October of 2016 because of missed appointments.

In the meantime, the children received trauma therapy from Dr. Amy Escott from January to August of 2015. During that time, they made several disclosures to Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
560 S.W.3d 906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-of-moctapp-2018.